The United Nations Charter as the Constitution

of the International Community

Legal Aspects of International Organization

Volume 51
The United Nations Charter as the
Constitution of the International
Community

By
Bardo Fassbender
Professor of International Law at the Bundeswehr University Munich

LEIDEN • BOSTON
2009
This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data

Fassbender, Bardo.
The United Nations Charter as the constitution of the international community / by Bardo
Fassbender.
p. cm. — (Legal aspects of international organization ; v. 51)
Includes bibliographical references and index.
ISBN 978-90-04-17510-5 (hardback : alk. paper)
1. United Nations. Charter.—Interpretation and construction. 2. Constitutional law. I. Title.

KZ4991.F37 2009
342—dc22
2009001103

ISSN 09244883
ISBN 978 90 04 17510 5

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 In memory of my friend
Dr. Harry J. Colish
Vienna 1909—New York 2002
 Contents
Preface............................................................................................................. ix
Introduction ..................................................................................................... 1
The UN Charter in Constitutional Perspective ............................................ 1
The Structure of my Argument ................................................................... 9

1. ‘Constitution’, and its Association with the Modern State ......................... 13

Constitutional Theory in Europe between the two World Wars............. 14
American Constitutional Theory: The Constitution
as ‘Higher Law’ and as a ‘Living Institution’ .......................................... 19
Typical Constitutional Features ............................................................. 22

2. The Transfer of the Constitutional Idea to the Sphere

of International Law: Different Approaches ............................................... 27
Alfred Verdross and his School .............................................................. 28
The New Haven School ........................................................................ 36
The Doctrine of International Community ........................................... 41
Constructivism ..................................................................................... 50

3. The International Community and its Constitution .................................. 52

A Challenged Notion ............................................................................ 55
The Traditional Dichotomy between ‘The International’
and ‘The Constitutional’ ....................................................................... 58
International Community and International Constitution .................... 64
The International Community as a Constitutional Community ............ 71
International Community, Constitution, and Organization .................. 74

4. The UN Charter as a Constitution ............................................................ 77

The Charter and Non-UN Member States: Doctrinal Deficits .............. 78
The ‘Ideal Type’ of a Constitution as a Standard of Comparison ........... 82
Constitutional Characteristics of the UN Charter ................................. 86
A ‘Constitutional Moment’ ............................................................... 86
A Constitutional Program ................................................................. 88
A ‘Charter’ ........................................................................................ 88
Constituent Power and Constitutional Form..................................... 90
Constitutional History ...................................................................... 94
viii Contents

A System of Governance ................................................................... 94

Definition of Membership .............................................................. 101
Hierarchy of Norms ........................................................................ 103
‘Eternity’ and Amendment .............................................................. 107
Universality and the Problem of Sovereignty ................................... 109

5. Conceptual Distinctions.......................................................................... 116

The Dual Constitutional Function of the UN Charter ........................ 116
The Normative and the Real Constitution
of the International Community ......................................................... 116
Constitutional Law and ‘General International Law’ ........................... 118
‘Constitutional By-Laws’ of the International Community ................. 122
Constitutional Law, Jus Cogens, and Obligations Erga Omnes .............. 123

6. Consequences.......................................................................................... 129
The Charter as a Living Instrument..................................................... 130
Constitutional Interpretation .............................................................. 131
Constitutional Amendment ................................................................ 136
Freedom and Restraint of Security Council Reform ............................ 145
Non-Member States ............................................................................ 147
Legal Persons Other than States as Addressees
of Security Council Decisions ............................................................. 148
Admission and Expulsion of UN Member States ................................ 150

Conclusion ................................................................................................... 159

Constitutional Discourses Past and Present ......................................... 159
Rediscovering a Constitution .............................................................. 168

Synopsis ....................................................................................................... 173

Bibliography................................................................................................. 189
Index ............................................................................................................ 205
 Preface
The present study is built on the first part of my book UN Security Council Reform
and the Right of Veto: A Constitutional Perspective which came out in 1998. Much
to my delight, it was received with a good deal of interest and attention by inter-
national lawyers, political scientists and UN specialists. In particular, my consti-
tutional reading of the UN Charter contributed to setting off a lively and still
ongoing debate about the existence and meaning of an ‘international constitu-
tional law’. The book analyzed the issue of a reform of the United Nations Security
Council – and in particular the ‘right of veto’ of the Council’s five permanent
members. It raised the question of whether international law provides legal stand-
ards for such a reform, or whether, to the contrary, a reform is purely a matter of
political decision-making. To answer that question, I inquired into the founda-
tions of the contemporary international legal order and identified certain legal
standards, binding on UN member states, by understanding the UN Charter as
the ‘constitution of the international community’. On that basis, I set forth an
outline of a ‘constitutional right of veto’, i.e., a proposal for a reform of the veto
power in accordance with constitutional standards. That way the book dealt with
a practical issue (changes in the composition and the procedure of the Security
Council) in a principled manner, drawing on legal theory and history. The first
part of the book was entitled ‘The right of veto as part of the constitution of the
international community’, followed by a second part ‘The future of the right of
veto and the structure of the Security Council’.
Working on a revised and updated edition of the book, I found that it would
make good sense to discuss the constitutional issues in an own monograph,
thereby creating space in the Security Council book for an extended coverage of
the reform debate that has now been ongoing for almost twenty years. This sepa-
ration also allows me to examine in more detail whether there exists today a glo-
bal legal framework that we can call a constitution of the international community
– and, if so, with what characteristics and consequences. In the years following
the publication of my book of 1998, this issue has indeed attracted much atten-
tion in the literature of international law and relations. The ‘constitutionalization’
of international law has become as popular a subject as its ‘fragmentation’. I have
taken into account new literature to the extent that it relates more directly to the
UN Charter. To deal with all the recent ‘constitutionalist’ literature (which
addresses so diverse issues like world trade, environmental regimes, human rights
x Preface

treaties, or regional institutions such as the European Union) would have meant
to write a different book, namely a sort of ‘handbook on the constitutionalization
of international law’, and that was not my intention.
This book is dedicated to Dr. Harry J. Colish who held out the hand of friend-
ship to me when I was a student at Yale Law School. He introduced me to the
cultural treasures of New York City, in particular the great art museums. We spent
days in the Metropolitan Museum of Art which he loved and the collections of
which he knew better than some of the curators. He was especially fond of medi-
eval sculpture and of Flemish and Dutch painting, of which he cherished the
works of Robert Campin, Roger van der Weyden and Jan Vermeer. He also took
a strong interest in literature, music and architecture. He liked to engage, in a
concentrated and attentive manner, in conversations about political and economic
questions, with a shared purpose of getting to the heart of a matter. He had the
gift of asking exactly the right and crucial questions. For all his life, he was keenly
interested in the future—possible or likely future developments in the political,
economic and cultural affairs of the United States, Europe and also Asia.
Harry was born in 1909 in Vienna as Hermann Kolisch, the only son of Robert
Kolisch, who was in the banking business, and his wife Paula, née Löw. (For bio-
graphical details, I am grateful to Ms. Elisabeth Cox, daughter of one of Harry’s
first cousins, and to her husband John.) His ancestors can be traced back to Jakub
Singer who was born in Teschen in Silesia around 1490. (See Francis George Low,
Die Teschener Mautpächterfamilie Singer und ihre Nachkommen 1490–1992,
10 Oberschlesisches Jahrbuch 11 (1994) ). After the premature death of his mother
in 1919 and his father in 1920, Harry was raised by two of his uncles, Dr. Alfred
Löw (1870–1943) and Dr. Rudolf Löw (1876–1943), both of them high-ranking
Austrian civil servants—the first Presiding Judge of the Supreme Court (Oberster
Gerichtshof) and the second President of the Fiscal Procuratorate (Finanzprokuratur)
in Vienna. Harry studied law and obtained a doctoral degree at the University of
Vienna. Having worked as a criminal lawyer for a few years, he moved into com-
merce. In 1938, after Nazi Germany had invaded Austria and extended the per-
secution of the Jewish citizens to that country, he fled to Shanghai. In the following
years, most of his close relatives were murdered in concentration camps, including
his uncles Alfred, Rudolf, Heinrich (1871–1943) and Emil Löw (1879–1944). In
Shanghai he worked for the former Dutch Ambassador in Vienna, Dr. Thorbecke,
and travelled widely throughout Northern China and to Manchuria. This experi-
ence stimulated a lifelong interest in China. In 1941, he moved to Japan and
there secured a passage to Seattle. His sister Käthe (1910–77), a librarian and
professor at the University of Pittsburgh, had managed to get the required affida-
vit for his entry to the United States. He settled in New York which became his
home for the rest of his life. When I met him, he had for many years been living
in East 76th Street, two blocks away from the Park, and the Metropolitan Museum
 Preface xi

at walking distance. He married Ruth Koretz (who passed away in 1990) and
took a position with Mobil Oil. His work led him all over the world, negotiating
with governments and oil companies. He thoroughly enjoyed the travel. Greatly
respected in the oil industry, he continued working as an independent consultant
after his retirement, especially occupying himself with forecasting trends in the
oil price development.
A loyal and grateful citizen of the United States, Harry Colish was also a citizen
of the world. He took a great interest in my studies in international law and the
UN and encouraged me to proceed with them. Since their school-days in Vienna,
he was good friends with Stephan Verosta (1909–98), a student of Alfred Verdross’
(who happens to play an important role in this book) and his successor on the
chair in international law and legal philosophy at the University of Vienna.
Harry once gave me a book that he had bought just after he had arrived in New
York: Man the Measure: A New Approach to History (New York, 1943). The title
must have intrigued him. But he also had something in common with the author,
Erich von Kahler, a historian and philosopher who had been born in Prague in
1885, lived in Vienna (since 1900) and Munich (since 1912), fled in 1933 via
Vienna and Prague to Zurich, and emigrated to the United States in 1938. The
book was based on lectures held at the New School for Social Research in New
York in 1941 and 1942. Leafing through the book today, I came across a passage
in the last chapter, entitled ‘Unity of the Secular World’: ‘The past decades’,
Kahler wrote, ‘have taught us that the advocates of “Realpolitik” are no longer
realistic politicians, but that today it is they who are “unthinking”, anachronistic
and Utopian. The “idealistic” programs of international solidarity, of the respon-
sibility of every people for all peoples and of all peoples for every people, of the
supremacy of human rights and duties over the “sacred egoism” of nations—these
programs, much maligned for their idealism, are today the only genuinely realis-
tic form of politics; the antithesis, that is, breaks down’ (p. 634).
I know that Harry would have been a diligent and also critical reader of the
present book (which I would have explained to him, very briefly, as an effort to
call to mind the fundamental transition that the UN Charter effected in interna-
tional legal relations); and I am confident that he would have liked it—sceptical
about mankind’s will and ability to live peacefully according to generally accepted
rules of law but convinced that such will and ability must be promoted as an
indispensable condition for the future of our world.

Berlin and Munich, October 2008

B.F.
Introduction
The arch from the by-gone era to the new is being built … . The all-important
question: will it hold?1
F.M. van Asbeck

The UN Charter in Constitutional Perspective

The subject of this book is international constitutional law, understood as a sub-

discipline of public international law.2 The reader is invited to participate in a
search of international law for elements of a constitutional order which can be
identified as the constitutional law of the international community—a law which
has been influenced by constitutional ideas and practices developed in a national
context, but which is ‘standing on its own feet’. That constitutional law of the
international community, I argue in this book, is built on and around the Charter
of the United Nations, which therefore has a double constitutional character—it
is the constitution of the United Nations as an international organization, and
also, and even more importantly, the constitution of the international community.
Good arguments support the view that the Charter has had constitutional quality
ab initio. But at any rate, during the more than sixty years of UN history, a con-
stitutional predisposition of the Charter has been confirmed and strengthened in
such a way that today we can rightly call it a constitution. Indeed, ‘international
law can now properly be regarded as “law with a constitution” ’.3

1
F.M. van Asbeck, Public International Law in Motion: Farewell Lecture Delivered at Leyden
University (1959), in International Society in Search of a Transnational Legal Order 452, 453 (H.F.
van Panhuys & M. van Leeuwen Boomkamp eds., 1976).
2
That law is not to be confused with a field of study sometimes also addressed as ‘international
constitutional law’, i.e., comparative constitutional law, which is devoted to a comparison of
different national constitutions. In particular, scholars compare ways and means of protecting
fundamental rights of citizens in various states of the world, or different forms of state organiza-
tion between the poles of centralization and federalism.
3
See Sir Humphrey Waldock, General Course on Public International Law, 106 Recueil des Cours
1, at 7 (1962 II). See also ibid. at 36, 38.
2 Introduction

The Charter was formally brought into existence as an international treaty.4

However, early on there was an awareness that just seeing the Charter as an
agreement, treating it like thousands of other international treaties, would not
do justice to its outstanding importance in postwar international law. If the
Charter was a treaty, then a very special one.5 Already in the final plenary
session of the San Francisco Conference U.S. President Harry S. Truman com-
pared the Charter with a constitution and stressed its character as a ‘living
instrument’:
The Constitution of my own country came from a Convention which – like this
one – was made up of delegates with many different views. Like this Charter, our
Constitution came from a free and sometimes bitter exchange of conflicting opin-
ions. When it was adopted, no one regarded it as a perfect document. But it grew
and developed and expanded. And upon it there was built a bigger, a better, and a
more perfect union.
This Charter, like our own Constitution, will be expanded and improved as time
goes on. No one claims that it is now a final or a perfect instrument. It has not been
poured into a fixed mold. Changing world conditions will require readjustments—
but they will be the readjustments of peace and not of war.6
In a similar vein, the Australian delegate to the last Assembly of the League
of Nations said that ‘the radical changes caused by the two World Wars
have produced one of the most characteristic creations of the twentieth

4
It was signed on 26 June 1945 at San Francisco and, in accordance with its Art. 110, entered into
force on 24 Oct. 1945, after a sufficient number of instruments of ratification had been depos-
ited. By 27 Dec. 1945, the process of ratification by all the fifty-one signatory states was com-
pleted. For text of the Protocol of Deposit of Ratifications of the Charter of the United Nations
of 24 Oct. 1945, drawn up by the U.S. Government in accordance with Art. 110(3) of the
Charter, see Leland M. Goodrich & Edvard Hambro, Charter of the United Nations: Commentary
and Documents 385 (1946).
5
See also James Crawford, Multilateral Rights and Obligations in International Law, 319 Recueil
des Cours 325, 368 et seq. (2006): ‘Was the terminology of nations united a move back to an ini-
tial constitutional idea – the idea of international organization as subsuming the activities and
powers of member states under a document properly described as a “constitution”? … Other
features of the Charter reinforce its claim to substantial authority. The possibility of reservations
by Members is not even entertained.’
6
Speech delivered by the President on June 26, 1945; I Documents of the United Nations Conference
on International Organization, 1945, at 680 (United Nations Information Organizations eds.,
1945). See also the address of the representative of Cuba, Mr. G. de Blanck, at the last session of
the League of Nations Assembly in April 1946: ‘[L]e Pacte fut transformé en une Charte … . La
valeur de cet instrument, comme celle de toute constitution, dépendra de la bonne foi de ceux
qui désirent sauvegarder la paix … .’ Reprinted in L’Héritage de la Société des Nations 52
(Secrétariat de la Société des Nations ed., 1946).
 Introduction 3

century: the organization of an international community governed by a written

constitution’.7
In accordance with that view, the first commentary on the UN Charter consid-
ered the possibility of the Charter being ‘a constituent act of the peoples of the
United Nations … rather [than] an agreement freely entered into between gov-
ernments’,8 and Professor J. L. Brierly spoke of ‘the beginnings of international
constitutional law’.9 The first General Counsel and Director of the Legal
Department of the UN, A. H. Feller, called the Charter ‘the constitutional instru-
ment which governs the organizational structure of a world community’.
[T]he Charter is not just a legal text intended to describe with precision the rights
and duties of parties like a conveyance or a contract of sale; it is a political document
designed to embody statements of ideals, of principles, and of moral sentiment. …
[S]uch is the nature of constitutions, at least of those constitutions which live in the
minds of people and are adaptable to growth along with the societies they are
intended to govern.10
Why was the notion of constitution introduced in international law? Presumably,
a first reason was the intention doctrinally to distinguish treaties establishing an
institution (an entity endowed with its own organs) from other ‘common’ inter-
national agreements.11 This explains official expressions like ‘Constitution of the

7
‘Des bouleversements causés par deux guerres mondiales a surgi l’une des créations les plus carac-
téristiques du xxe siècle: l’organisation d’une communauté internationale régie par une constitution
écrite.’ Address by Professor K.H. Bailey, April 1946, reprinted in L’Héritage de la Société des
Nations 53 (Secrétariat de la Société des Nations ed., 1946) (emphasis added).
8
See Goodrich & Hambro (supra note 4), at 19 (emphasizing, however, the ‘treaty character’ of
the Charter).
9
‘… institutions which, while they cannot yet be regarded as giving a “constitution” to the inter-
national society, may not unfairly be described as a beginning of its constitutional law.’ J.L.
Brierly, The Law of Nations: An Introduction to the International Law of Peace 95 (6th ed. 1963,
Sir Humphrey Waldock ed.).
10
A. H. Feller, Book Review [of Hans Kelsen, The Law of the United Nations], 51 Colum. L. Rev.
537, 538 (1951).—In a book of 1948, the English historian A.J. Toynbee referred to ‘[t]he
present constitution of the U.N.’ as representing ‘the closest degree of co-operation that the
United States and the Soviet Union can reach at present’. ‘This constitution is a very loose con-
federation. … [It] is in the same stage as the United States after the War of Independence.’
Toynbee supported ‘working towards the inevitable goal of world unity’ under ‘some constitu-
tional form of world government’. ‘In the counsels of a constitutionally governed world, the
states members of the Commonwealth will carry great weight because they are a large continent
in the small company of states that are politically mature’. See Arnold J. Toynbee, Civilization on
Trial 135–38 (1948).
11
Judge Mosler, for instance, contrasted ‘treaty’ with (constituted) ‘organization’ in the following
way: ‘A treaty is simply the expression of the intention of the parties to establish reciprocal rights
and obligations or to agree on certain rules of conduct and is interpreted according to the
4 Introduction

World Health Organization’ or ‘Constitution of the International Labour

Organization’. Here, ‘constitution’ is used as a synonym for ‘articles of agreement’
(as in ‘Articles of Agreement of the International Monetary Fund’), ‘convention
establishing the …’ (as in ‘Convention establishing the World Intellectual
Property Organization’), or ‘constituent instrument’ (as in Article 5 of the Vienna
Convention on the Law of Treaties)—it is an instrument determining the pur-
poses and competences of a distinct entity established on the basis of public inter-
national law and the relations between that entity and its members.12 This usage
is well established. Already the Final Act of the German Confederation (Deutscher
Bund) of 1820 spoke of the Confederal Assembly as the ‘perpetual constitutional
organ’ of the Confederation.13 Wolfgang Friedmann referred to ‘international
constitutional law’ as the field of comparative study of ‘constitutions’ of intergov-
ernmental organizations, first and foremost the United Nations.14

intention of the parties in accordance with its object and purpose. Organisations, on the other
hand, have a life of their own and once brought into existence by a group of States, they develop
their own will through their organs acting within the scope of their competence.’ Hermann
Mosler, The International Society as a Legal Community 181 (1980) (emphasis added). See also
Riccardo Monaco, Le caractère constitutionnel des actes institutifs d’organisations internatio-
nales, in Mélanges offerts à Charles Rousseau: La communauté internationale 153 (1974).
12
See, for instance, Henry G. Schermers, International Organizations, in International Law:
Achievements and Prospects 67, 68 (Mohammed Bedjaoui gen. ed., 1991): ‘An international
organization is characterized as a governmental organization, or as a public international
organization, when it is established by an interstate agreement. With very few exceptions … the
required interstate agreement is expressed in a treaty. This treaty is usually called the constitution
of the organization. Constitutions must fulfil the normal requirements of treaties … .’
Accordingly, the author also speaks of a ‘constitutional treaty’. For earlier academic usage, see,
e.g., C. Wilfred Jenks, Some Constitutional Problems of International Organizations, 22 Brit.
Y.B. Int’l L. 11 (1945). The German term of art Satzung has a synonymous meaning, but it can
also be applied to organizations established on the basis of private law. See also Geoffrey R.
Watson, Constitutionalism, Judicial Review, and the World Court, 34 Harv. Int’l L. J. 1, 33
(1993): ‘The U.N. Charter is, in one sense, a constitutive document; it establishes the organs of
U.N. government, it lays down rules of governmental procedure, and it provides some substantive
norms for international conduct. In another sense, the Charter is just another treaty … .’ Note
that this author goes beyond Schermer’s definition of a ‘constitutional treaty’ in that he refers to
‘substantive norms for international conduct’.
13
See Art. 7 of the Wiener Schluss-Akte of 15 May 1820, reprinted in I Ausgewählte Urkunden zur
deutschen Verfassungsgeschichte seit 1806, at 73, 75 (Wilhelm Altmann ed., 1898). See also Art. 10.
14
See Wolfgang Friedmann, The Changing Structure of International Law 153 (1964): International
constitutional law ‘consists of an analysis of the functions, competences, and divisions of power
of the various organs of the U.N. itself, and of the Specialised Agencies of the U.N. … . It further
includes an analysis of non-universal international bodies, such as the Organisation of American
States, the Council of Europe, and above all, the European Communities.’
 Introduction 5

But there were and there are more ambitious intentions. President Truman’s
opinion that some sort of dynamism is inherent in the very concept of a constitu-
tion is widely shared. Professor Franck said,
[t]he law of, or about, international organizations is essentially constitutional law.
This is true not only because it is descriptive of the internal rules governing the
operation of institutions and societies, but because it is treated by lawyers in a man-
ner different from other law—treated as being capable of organic growth.15
Professor Rosenne has demonstrated that scholars and judges advancing a ‘consti-
tutionalist’ theory conceptually distinguish constituent instruments of intergov-
ernmental organizations from the bulk of multilateral treaties, in particular with
regard to their interpretation, the acquisition and loss of membership, reserva-
tions, and amendments.16 ‘[T]he element of treaty appears merely as the presup-
position of the organization, the foundation upon which the superstructure, the
constitution of the organization, and even more the constitutional practices based
on that constitution, are established’.17
The International Law Commission referred to the notion when seeking to
explain that the legal capacity of an intergovernmental organization does not only
depend on the terms of its constituent treaty.18 With regard to the UN Charter,
the terms ‘constitution’ and ‘constitutional’ were occasionally invoked by judges
of the International Court of Justice to support a method of Charter interpreta-
tion oriented to the aims and purposes of the UN and their pursuance in a chang-
ing global context.19 As Professor Skubiszewski noted, ‘the perception of the

15
Thomas M. Franck, Book Review, 77 Harv. L. Rev. 1565 (1964) (reviewing D.W. Bowett,
The Law of International Institutions (1963) ) (emphasis added).
16
See Shabtai Rosenne, Developments in the Law of Treaties 1945–1986, at 181–258 (1989).
17
Ibid. at 191.
18
Considering Sir Humphrey Waldock’s report on the law of treaties, the ILC adopted the follow-
ing redraft of art. 3, para. 4, on 22 June 1962: ‘In the case of international organizations capacity
to conclude treaties depends on the constitution of the organization concerned.’ [1962] Y.B. Int’l
L. Comm’n 240 (emphasis added). Sir Humphrey explained that the expression ‘had been cho-
sen because it was broader than “constituent instrument”; it covered also the rules in force in the
organization.’ Id. at 242. In its commentary, the ILC noted: ‘The term “constitution” has been
chosen deliberately in preference to “constituent instrument.” For the treaty-making capacity of
an international organization does not depend exclusively on the terms of the constituent instru-
ments of the organization but also on the decisions and rules of its competent organs … . [I]t is
the constitution as a whole – the constituent treaty together with the rules in force in the organi-
zation – that determine the capacity of an international organization to conclude treaties.’ [1962]
Y.B. Int’l L. Comm’n 164. The Commission later decided to omit the question of the treaty-
making capacity of international organizations from the draft articles.
19
For a particularly clear expression of this idea, see South-West Africa—Voting Procedure, Adv. Op.,
1955 ICJ Rep. 67, 106 (Lauterpacht, J., sep. op.): ‘A proper interpretation of a constitutional
6 Introduction

Charter as a constitution’ with its ‘emphasis on the purposes of the Organization

favours the teleological method and the application of the doctrine of implied
powers’.20 However, no coherent idea of constitutionalism was developed in these
short remarks from the bench. Similarly, in textbooks of international law,21 and
even in political discourse,22 the words ‘constitution’ and ‘constitutional’ are now
frequently used with regard to founding treaties of international organizations
and, in particular, the UN Charter, but generally no reasons are given for the
adoption of this terminology.23

instrument must take into account not only the formal letter of the original instrument, but also
its operation in actual practice and in the light of the revealed tendencies in the life of the
Organization.’ See also id. at 112: ‘constitutional Charter’, and International Status of South-West
Africa, 1950 ICJ Rep. 186, 187 (de Visscher, J., diss. op.): ‘a treaty of a constitutional character
like the United Nations Charter’. Judge Álvarez, who perhaps was the strongest advocate of the
method of teleological Charter interpretation on the bench, referred to certain categories of
multilateral conventions, among them ‘those which seek to develop world international organi-
zation’, as ‘the Constitution of international society, the new international constitutional law’, and
explained: ‘They are not established for the benefit of private interests but for that of the general
interest; they impose obligations upon States without granting them rights … .’ (Reservations
to the Genocide Convention, 1951 ICJ Rep. 49, 51, dissenting). For comment, see Georg
Schwarzenberger, The Problem of International Constitutional Law in International Judicial
Perspective, in Festschrift für Eberhard Menzel 241, 243–49 (Jost Delbrück et al. eds., 1975).
20
Krzysztof Skubiszewski, Remarks on the Interpretation of the United Nations Charter, in
Festschrift für Hermann Mosler 891, 893 (Rudolf Bernhardt et al. eds., 1983). See also id., Implied
Powers of International Organizations, in Essays in Honour of Shabtai Rosenne 855 (Yoram
Dinstein & Mala Tabory eds., 1989). See further Friedmann, The Changing Structure (supra note
14), at 154: ‘[O]ne of the notable features of United Nations development has been “the practice
not too commonly or widely challenged of interpreting the Charter of the United Nations as a
constitution and not simply as a treaty’ (quoting Leland M. Goodrich, The Political Role of the
Secretary-General, 16 Int’l Organization 726 (1962) ) (emphasis added); and Manuel Rama-
Montaldo, Contribution of the General Assembly to the Constitutional Development and
Interpretation of the UN Charter, in Towards World Constitutionalism: Issues in the Legal Ordering
of the World Community (Ronald St. John Macdonald & Douglas M. Johnston eds., 2005), at
493, 513: ‘The concept of “constitution” applied to the Charter of the World Organization
proved historically instrumental for providing a legal basis for the dynamic and evolutive inter-
pretation of the Charter’. For a brief review of ICJ case law in favor of ‘a teleological interpreta-
tion of the Charter in the interests of the effectiveness of the substantive obligations’, see
Crawford, Multilateral Rights and Obligations (supra note 5), at 374–79.
21
See, e.g., Ian Brownlie, Principles of Public International Law 657 (6th ed. 2003): ‘The constitu-
tional structure of an international organization …’.
22
See, e.g., the statement by the representative of the United Kingdom to the UN, Ambassador
Ivor Richard, 12 Nov. 1974: ‘[T]he Charter is and must be the constitutional foundation for all
that we do. Respect for that Charter must permeate all our decisions.’ Quoted in Yehuda
Z. Blum, Eroding the United Nations Charter 7 (1993).
23
But see Detlev F. Vagts, Treaty Interpretation and the New American Ways of Law Reading, 4
Eur. J. Int’l L. 472, 473 (1993) (‘certain multilateral agreements … have institutional
 Introduction 7

The question of interpretation apart, ‘constitution’ has been referred to as a

symbol of a higher form of (political) unity in the international sphere. A ‘draft
constitution of a League of Nations’ submitted in 1918 by a German parliamen-
tarian influenced by President Wilson’s ideas was presented with the words that
the league should be ‘a higher community of peoples joining together for the
preservation of peace and their common well-being’.24 In this view, a community
which can rightly call its fundamental rules a ‘constitution’ has realized a particu-
larly high degree of cohesion. There is a simultaneous development of the ideas of
‘international community’ and ‘international constitution’, both concepts being
directed against the traditional meaning of sovereignty of states which empha-
sized the self-containment and separateness of a national political system. The
notion of international community, on the other hand, accentuates the openness
of such a system towards the world at large and its integration in an overarching
legal structure. The existence of a constitution entailing at least, in the terminol-
ogy of H.L.A. Hart, the most fundamental rules of recognition, change and adju-
dication would also partly remedy those defects of the international legal system
which still make it appear less developed than an average national legal system.25
One of the central features of a written constitution is the establishment of a
hierarchy of legal norms. Traditional international law did not know of any such
hierarchy, if one leaves aside the Kelsenian efforts of constructing a Grundnorm,
or basic norm, from which other rules are supposed to derive according to the
laws of reason or logic.26 Whoever wants to endow certain rules of international
law, as compared to others, with a ‘higher’ rank or ‘stronger’ force of law, there-
fore can find some arguments in the idea of international constitutionalism.
In the late 1920s, Hans Kelsen referred to his time as a transitional period
in the history of international law, and saw this character reflected in the

characteristics in common with the United States Constitution’). See also Ignaz Seidl-
Hohenveldern, Völkerrecht 97 (8th ed. 1994): Since a founding treaty of an international organi-
zation ‘plays a role in the life of the organization similar to that of a constitution in the domestic
sphere, one is often tempted to interpret such treaties according to rules applicable in national
constitutional law’.
24
Matthias Erzberger, Der Völkerbund: Der Weg zum Weltfrieden 161–62 (1918) (draft constitution
at 184–94). For the background of this proposal, see Torsten Oppelland, Matthias Erzberger und
die Anfänge demokratischer Aussenpolitik in Deutschland, 2 Historisch-Politische Mitteilungen
25, 41–45 (1995).
25
Many will still agree with Professor Hart’s finding of 1961 ‘that the rules for states resemble that
simple form of social structure, consisting only of primary rules of obligation, which, when we
find it among societies of individuals, we are accustomed to contrast with a developed legal
system’. See H.L.A. Hart, The Concept of Law 209 (1961).
26
See Hans Kelsen, General Theory of Law and State 110–11 (Anders Wedberg transl., 1945, 1999
reprint).
8 Introduction

‘contradictions of an international legal theory which in an almost tragic conflict

aspires to the height of a universal legal community erected above the individual
states but, at the same time, remains a captive of the sphere of power of the sov-
ereign state’.27 Almost forty years later, Wolfgang Friedmann arrived at a very
similar conclusion when he wrote:
In terms of objectives, powers, legal structure and scope, the present state of inter-
national organisation presents an extremely complex picture. It reflects the state of
a society that is both desperately clinging to the legal and political symbols of
national sovereignty and being pushed towards the pursuit of common needs and
goals that can be achieved only by a steadily intensifying degree of international
organisation.28
What Kelsen described as a shortcoming of legal science – its inability to climb
over the mental walls of the sovereign state – Friedmann extended to the state of
the international order.
The contradictions Kelsen spoke of and the dilemma outlined by Friedmann
are also, I think, characteristic features of world constitutionalism as a reality and
an aspiration. State sovereignty, which the two authors addressed, and constitu-
tionalism in international law are closely related issues, or two faces of the same
problem. To speak, in our time, about the international constitutional order
means approaching the subject of sovereignty, that is, the status of independent
states in international law, from another side.
Extrapolating the concept of constitution to the international community, I
claim to describe an ongoing cumulative process in which empirical facts have
forced revisions in our theory of the international legal system – revisions already
suggested by the norms of the Charter. However, perhaps there is less continuity
than we think or would like to see, and what is happening is a scientific revolution
as perceived by Thomas Kuhn, in which an older paradigm is overthrown and
replaced by a framework incompatible or even incommensurate with it. The old
paradigm would be an international law based on state sovereignty – a system of
bilateralism in which a legal rule only becomes binding on a state because of its
consent. In contrast, the new paradigm would be international constitutionalism –
the legal order of a community the fundamental rules of which must be honoured
by every member of the community irrespective of its individual approval. If this
were true, we could not expect the ‘facts’ and ideas adduced to support the older
theory to be relevant to the new, and the questions asked and answered in the
new framework would be different from those of the old.

27
See Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer
Reinen Rechtslehre 320 (2nd ed. 1928) (my translation).
28
See Friedmann, The Changing Structure (supra note 14), at 293 et seq.
 Introduction 9

The Structure of my Argument

The argument presented in this book was developed in view of a practical

question—the reform of the UN Security Council. Analyzing the various propos-
als, I asked myself whether a reform of the Council is purely a matter of political
decision-making, with governments having a free hand to reorganize the Council
and its procedure as they wish. Or are there, to the contrary, certain legal stand-
ards binding on UN member states? And where could one find such standards?
I could not find them in ‘general international law’, or the law of treaties, but
found them by understanding the Charter as a constitution, and by taking this
qualification seriously. On that basis, I was able to put forth an outline of a ‘con-
stitutional right of veto’, i.e., a proposal for a reform of the veto power in accord-
ance with constitutional standards and concepts.29 But a constitutional reading of
the Charter did not only allow me to answer that practical question but also
better to understand other aspects of the Charter which had puzzled me (and
others)—like its impressive opening formula ‘We the Peoples of the United
Nations’ with which the drafters replaced the traditional standard opening of an
international treaty, or the meaning of ‘sovereign equality’ of states (Article 2,
paragraph 1), or the claim of the Charter that its principles are binding on non-
member states (Article 2, paragraph 6), or the fact that the Charter – different
from ‘conventional’ treaties and also from its predecessor, the League of Nations
Covenant – does not provide for its termination or the possibility of a member
leaving the legal community established by the Charter. Building upon that work
published in 1998, the present study wants to continue and advance the dis-
course on the constitutional foundations of the United Nations and the interna-
tional community at large.
The plan of the present book is as follows: The first chapter opens with an exami-
nation of the different concepts of ‘constitution’ in modern legal theory. Although
scholarly views about the nature and function of a constitution differ widely, an
analysis of constitutional texts demonstrates a number of features contemporary
constitutions almost universally have in common. The author discusses particu-
larly those European and North American doctrines he is most familiar with. It
has not been his intention to set forth a general theory of constitutionalism.
Rather, those ideas and themes are taken up which have an impact on the prob-
lem of an international constitution.

29
See Bardo Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional
Perspective (The Hague / London / Boston: Kluwer Law International, 1998). A short version of
the first part of the book was published as ‘The United Nations Charter as Constitution of the
International Community’ in 36 Colum. J. Transnat’l L. 529 (1998).
10 Introduction

The second chapter analyzes different doctrines which in the twentieth century
have asserted and expounded a constitutional character of the UN Charter, or the
role the Charter plays in a global ‘constitutive process’. I start with the views the
Viennese scholar Alfred Verdross and his students. Next, the ideas of the New
Haven School founded by Myres S. McDougal and Harold D. Lasswell are dis-
cussed. In a section entitled ‘The Doctrine of International Community’ the work
of those scholars is presented whose constitutional view is based on the idea of an
international legal community. Hermann Mosler and Christian Tomuschat are
referred to as exponents of that school of thought.
Taking a closer look at the concepts of state, constitution, international com-
munity and international organization, the third chapter mainly deals with pos-
sible objections to an application of the constitutional concept to the international
community – its alleged datedness, its Western origin, its association with the
modern state, and the supposedly lacking homogeneity of the community –, and
tries to prove those objections unfounded.
At the beginning of chapter 4 it is argued that neither the Verdross school nor
the doctrine of international community adequately explains the status of non-
member states under the Charter, a question of great theoretical consequence
despite the fact that today virtually all existing states have joined the United
Nations Organization. The author sees the solution to this problem in a consist-
ent interpretation and construction of the Charter as a constitution. A number of
characteristic features of a modern constitution are established which, taken
together, represent a paradigmatic ideal type – as developed by Max Weber – of a
constitution to which the UN Charter then is compared. A particularly crucial
question is that of universality. To be the constitution of the international com-
munity, the Charter must be binding on all subjects of international law. The
author explains why the doctrine of sovereignty does not stand in the way of such
a universal effectiveness. He concludes that good arguments support the view
that the Charter has had such a constitutional quality ab initio, but that, at any
rate, during the more than sixty years of UN history an original ‘constitutional
predisposition’ of the Charter has been confirmed and strengthened in such a way
that today the instrument can and must be referred to as the constitution of the
international community. This finding does not imply that the international
order has left behind the sphere of international law. Instead, it is suggested that
we live under an international law governed by a constitution, the UN Charter.
In the fifth chapter, which is entitled ‘Conceptual Distinctions’, I first address
the dual constitutional function of the UN Charter as a constitution of the United
Nations as an organization and the constitution of the international community.
Subsequently, the Charter is described as a normative constitution. The author
then endeavors to determine the relationship between the constitutional law of
the international community and ‘general international law’. Further, certain
 Introduction 11

norms of treaty and customary law adding to, and implementing objectives of,
the law of the Charter, are identified as ‘constitutional by-laws’ of the interna-
tional community. In the last section of the chapter, constitutional law is distin-
guished from other related categories of international law, namely jus cogens and
obligations erga omnes.
Chapter 6 discusses a number of consequences arising from a constitutional
perception of the Charter—for its interpretation and amendment (in particular
with regard to a reform of the Security Council), for the position of non-member
states as well as subjects of international law other than states, and for the admis-
sion and expulsion of UN member states. As to the latter, it is suggested that one
must distinguish between the membership of a state in the international com-
munity and its participation in the work of the community organs. In the same
way a state can still abstain from joining the United Nations, it can also (under
certain circumstances) leave the Organization or temporarily withdraw from its
institutions. But a state cannot leave the international community as such, and it
cannot escape the rules set out in its constitution. On the other hand, since the
Charter gives the international community an organic structure, every independ-
ent and ‘peace-loving’ state is entitled to membership in the UN, and cannot be
permanently excluded from the Organization.
In the Conclusion, the authors relates the more recent academic debate about
the issue of an ‘international constitution’ to the discourses of the past. In par-
ticular, he tries to explain why in the last few years the idea of an international
constitutional law has become so popular. Subsequently he discusses the prospects
and difficulties of ‘rediscovering a constitution’ of the international community.
The main theses put forward by the author in this study are summarized in a
Synopsis at the end of the book.
Chapter 1
‘Constitution’, and its Association
with the Modern State
The fundamental law which determines the manner in which the public authority is
to be exercised is what forms the constitution of the state. In it can be seen the organi-
zation by means of which the Nation acts as a political body; how and by whom the
people are to be governed, and what are the rights and duties of those who
govern.30
Emer de Vattel

At the beginning of the twenty-first century, ‘the triumph of constitutionalism

appears almost complete. Just about every state in the world has a written consti-
tution’.31 Or, in the words of Neil Walker, ‘[t]he currency of constitutionalism
may never have been more in demand than today’.32 But what is or makes a ‘con-
stitution’? As is true for many other fundamental notions of law, the term, even if
limited to public communities, is used in many different ways. Definitions vary
from period to period, place to place, and author to author. Today, positivist ideas
compete with those of legal realism, critical legal studies, and fragments of conti-
nental pre-World War II teachings. It seems that continental scholars have been
more interested in the abstract question of how to define a constitution than
British or American authors. (Similarly, Europeans have been more disposed to

30
Emer de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux
Affaires des Nations et des Souverains (1758), at 31 (= Livre I, chapitre III, § 27); photographic
reproduction in ‘The Classics of International Law’ (James Brown Scott ed. and Charles G.
Fenwick transl., 1916). In the original, Vattel wrote: ‘Le règlement fondamental qui détermine
la manière dont l’Autorité Publique doit être exercée est ce qui forme la Constitution de l’Etat.
En elle se voit la forme sous laquelle la Nation agit en qualité de Corps Politique; comment &
par qui le Peuple doit être gouverné, quels sont les droits & les devoirs de ceux qui
gouvernent.’
31
Richard S. Kay, American Constitutionalism, in Constitutionalism: Philosophical Foundations 16
(Larry Alexander ed., 1998).
32
Neil Walker, Constitutionalism, in Understanding Democratic Politics 12, 16 (Roland Axtmann
ed., 2003).
14 Chapter One

identify the nature of ‘the state’.) Great Britain does not have a written (or ‘docu-
mentary’) constitution, and the citizens of the United States live for more than
two hundred years under an instrument the constitutional quality of which they
have no reason to question. Europeans, on the other hand, have experienced
many constitutional breaks and instances of constitution-making since the end of
the eighteenth century. The pragmatism of common law lawyers, who are less
inclined to fall under the spell of abstract notions, may also account for the rela-
tive absence of a pertinent Anglo-American debate. The question of how a con-
stitution works is deemed more important than that of what a constitution is.
In the following, I will not try comprehensively to describe and compare
the different historical and contemporary concepts of a constitution.33 First, I
will leave aside two older non-normative notions of constitution.34 Second, I will
limit myself to an outline of those schools of thought which have a bearing on the
subject of this book (the possible existence of an international constitution), and
an exposition of what can be learned from constitutions actually being in force.
The cardinal question of whether the notions of (modern) state and constitution
are tied together in a way that only a state can have a constitution is dealt with at
a later stage.35

Constitutional Theory in Europe between the two World Wars

In Germany and Austria, the years between the two World Wars saw a few schol-
ars whose differing approaches continue to influence constitutional thought in
Europe and beyond—Hans Kelsen, Rudolf Smend, Hermann Heller, and Carl
Schmitt. Their teachings reveal the variety of ideas, notions and historical

33
For an overview of the history of the term from antiquity to the twentieth century, see Heinz
Mohnhaupt & Dieter Grimm, Verfassung: Zur Geschichte des Begriffs von der Antike bis zur
Gegenwart (1995). For a comparison of American and European concepts of constitutionalism,
see Gerhard Casper, Changing Concepts of Constitutionalism: 18th to 20th Century. In The
1989 Supreme Court Review 311–32 (Gerhard Casper & Dennis J. Hutchinson eds., 1990).
34
I.e., (1) constitution as a description of how a community is actually constituted or, in Carl
Schmitt’s language, as a community’s actual general condition of political unity and social order,
and (2) constitution as the mode in which a state is organized, especially as to the location of the
ultimate or sovereign power, i.e., constitution as a form of government (monarchy, aristocracy,
republic, etc.). Here, as in the case of the first meaning, constitution is a status or continuum,
something which exists and not something which ought to exist because of a legal directive.
Cf. Carl Schmitt, Verfassungslehre 4–5 (1928). In addition, the term (in its English and French
form, as well as the German Verfassung) describes (3) the action of constituting something. See
Constance Grewe & Hélène Ruiz Fabri, Droits constitutionnels européens 33 (1995) and, gener-
ally, ‘constitution’, in 3 The Oxford English Dictionary (2d ed.) 789–90 (1989).
35
See infra ch. 3, The Traditional Dichotomy between ‘The International’ and ‘The Constitutional’.
 Constitution and its Association with Modern State 15

experiences associated with the constitutional concept. They all reacted to the
crisis of the modern state as they experienced it in Europe; and their common
question was not unlike the one we pose today with regard to the international
community: ‘How can unity be brought about in a pluralist, or even antagonistic,
society?’36
In Kelsen’s positivist ‘pure theory of law’ – a theory meant to free the law from
all purportedly extra-legal elements – a constitution is described as ‘the highest
level within national law’. However, in the hierarchical structure of law identified
by Kelsen its validity depends on a hypothetical ‘basic norm’ (Grundnorm) as a
norm the validity of which cannot be derived from a superior norm. This basic
norm is characterized as ‘constitution in a logical sense’37 (Verfassung in einem
rechtslogischen Sinne), and contrasted with a ‘constitution in a positive sense’
(Verfassung im positivrechtlichen Sinne) created on its basis. The positive constitu-
tion is further classified in a constitution in a formal and a constitution in a mate-
rial sense.38
The constitution in the formal sense is a certain solemn document, a set of legal
norms that may be changed only under the observation of special prescriptions, the
purpose of which it is to render the change of these norms more difficult. The consti-
tution in the material sense consists of those rules which regulate the creation of the
general legal norms, in particular the creation of statutes … . [I]t is in order to safe-
guard the norms determining the organs and the procedure of legislation that a spe-
cial solemn document is drafted and that the changing of its rules is made especially
difficult … . [A] constitution in the formal sense of the term is not indispensable,
whereas the material constitution … is an essential element of every legal order.39
According to Kelsen, a constitution in the formal sense is possible only if there is
a written constitution, whereas the constitution in the material sense may be
written or unwritten, and have the character of statutory or customary law. The
material constitution may determine not only the organs and the procedure of
legislation, but also the contents of future laws—negatively by laying down that
the laws must not have a certain content, or positively by prescribing a certain

36
See Gerhard Robbers, Die Staatslehre der Weimarer Republik: Eine Einführung, Jura 69, 72
(1993).
37
Kelsen addressed this constitution also as ‘the first constitution of the legal order’, namely, the
rules determining the methods by which positive law is to be created. See Hans Kelsen, Principles
of International Law 245 (2nd ed., Robert W. Tucker ed., 1967).
38
See Hans Kelsen, Allgemeine Staatslehre 248–54 (1925, photo. reprint 1993), and id., General
Theory (supra note 26), at 115–16, 124–26. For a later text of Kelsen’s, see id., The Function of
a Constitution (1964), in Essays on Kelsen 109–19 (Richard Tur & William Twining eds.,
1986).
39
Kelsen, General Theory (supra note 26), at 124–25. See also id., Reine Rechtslehre 228–30 (2d ed.
1960, photo. reprint 1983).
16 Chapter One

content of future statutes.40 The actual content of a constitution (that is, for
instance, the question of whether it includes a guarantee of fundamental rights)
is of no importance in Kelsen’s system.
Rudolf Smend emphasized the integrative function of constitutional law. ‘The
constitution is the (positive) legal order of a state and, more exactly, the process of
its integration’.41 By a later author, this integration was defined as ‘an actual proc-
ess by which the members of a polity develop a communal spirit and a collective
identity that differentiates them from other polities’.42 The constitution does,
however, not completely control this social process; it only determines by means
of law some of its aspects.43 It is an ‘integrative reality’, generated by a constantly
moving constitutional life.44 Constitution in that sense denotes a dynamic estab-
lishment of political unity, the process of an ever new creation and formation of
this unity by compromise and concession. Rules about the organs, formal func-
tions and tasks of the state are seen as essential parts of the constitution because
they constitute and sustain a personal, functional and material integration.45
Following Smend, Konrad Hesse defined a constitution as the ‘legal fundamen-
tal order of a public community’.46
[The constitution] determines the guiding principles according to which political
unity shall be constituted and governmental tasks be performed. It establishes pro-
cedures to resolve conflicts in the community, and organizes and structures the for-
mation of political unity and governmental activity. It creates the foundations and
sets forth the essential features of the legal order as a whole.47

40
Kelsen, General Theory (supra note 26), at 125.
41
Rudolf Smend, Verfassung und Verfassungsrecht 78 (1928). Reprinted in id., Staatsrechtliche
Abhandlungen und andere Aufsätze 119 (3d ed. 1994). See also id., Integrationslehre (1956), and
Integration (1966), reprinted in Staatsrechtliche Abhandlungen at 475 and 482, respectively.
42
See Dieter Grimm, Integration by Constitution, 3 Int’l J. Const’l L. 193 (2005).
43
See Smend, Verfassung und Verfassungsrecht, at 78 and 189, respectively: ‘[D]ie Verfassung ist die
gesetzliche Normierung einzelner Seiten dieses Prozesses [des Integrationsprozesses].’
44
Ibid. at 80–81.
45
Ibid. at 88. For an understanding of constitution as a (public and open) process, see Peter
Häberle, Verfassung als öffentlicher Prozess: Materialien zu einer Verfassungstheorie der offenen
Gesellschaft (2d ed. 1996).
46
Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 10 (19th ed.
1993). See also Fritz Fleiner, Schweizerisches Bundesstaatsrecht 392 (1923) (constitution as ‘the
fundamental law of the life of the state’). For a somewhat narrower definition, see Jean-François
Aubert, La Constitution, son contenu, son usage 28 (1991) (‘la constitution … a pour premier
objet de régler l’organisation d’un corps politique’).
47
Hesse, Grundzüge, at 10 (my translation, B.F.). See also Kurt Eichenberger, Sinn und Bedeutung
einer Verfassung 157–58 (1991). For a similar view of the function of a constitutional system, see
Marc Weller, The Reality of the Emerging Universal Constitutional Order: Putting the Pieces of
the Puzzle Together, 10 Cambridge Rev. Int’l Aff. 40, 43 (Winter-Spring 1997).
 Constitution and its Association with Modern State 17

Carl Schmitt’s work focused on the enduring problem of the relationship between
the constituent power ( pouvoir constituant) and the institutional sites of power
‘constituted’ by it ( pouvoir constitué ).48 Schmitt’s basic distinction was that
between a constitution ‘in an absolute sense’ (‘constitution as a unified whole’)
and a constitution ‘in a relative sense’ (‘constitution as a plurality of single laws’).
Schmitt, seeking to recover and retain this ‘absolute’ sense of constitution, estab-
lished a hierarchy between ‘constitution’ and constitutional laws, insisting on the
greater importance of the former. The constitution – not being a law or a norm,
but a decision – comes first; the constitutional laws follow. Constitution, as the
prerequisite of any legislation, including the adoption of constitutional laws, is
‘the fundamental political decision of the entity in whom the power to establish
the constitution is vested’.49 From this distinction Schmitt drew several conclusions,
in particular with regard to the possibility of amending constitutional laws.
The subtly differentiated observations of Hermann Heller on the character and
function of a constitution are more difficult to summarize.50 The modern consti-
tution, Heller held, is characterized by the intention to set out, in a single written
document, the structure of a state, i.e., its institutions and principles. The com-
munity’s political existence is defined by means of a systematization and rationali-
zation of law.51 Modern written constitutions have the tendency to limit the
exercise of governmental power by means of law, in particular by providing for
individual fundamental rights and freedoms. In order to accentuate the superior
importance of constitutional law, and to give it a longer life and greater stability
than is enjoyed by legal norms of lower rank, it can generally only be amended
under specific conditions.52 Heller commented on the distinction between a con-
stitution in a substantive sense (materielle Verfassung) and a constitution in a for-
mal sense, or constitutional instrument (formelle Verfassung) – a distinction which,
as will be seen, plays an important role in the perception of the constitution of
the international community – as follows:
No written constitution ever includes all fundamental norms, and every such instru-
ment also includes rules which … cannot be regarded as fundamental. Therefore, a
constitution in a substantive sense is always composed of more than one law in a
formal sense, and one of those laws is called ‘the’ constitution because of its

48
For a recent collaborative reexamination of this problem from the perspective of constitutional
theory, the constitutional law and history of the United States, France, the United Kingdom and
Germany, and of European and international law, see The Paradox of Constitutionalism: Constituent
Power and Constitutional Form (Martin Loughlin & Neil Walker eds., 2007).
49
Carl Schmitt, Verfassungslehre 23 (1928).
50
See Hermann Heller, Staatslehre 248–79 (1934, many later reprints).
51
Ibid. at 270–71.
52
Ibid. at 273–74.
18 Chapter One

outstanding importance … . There can never be a complete identity of the written

and the substantive constitution of a state.53
Heller criticized Schmitt’s attack on formal constitutional law as incompatible
with the idea of the rule of law. To him, constitution could not be understood as
a merely factual ‘decision’ of a non-normative power. At the same time, he also
rejected Kelsen’s concept of a constitution.54
Heller understood the modern normative state constitution as a result of a long
historical process of rationalization of the exercise of power.
Development of culture always presupposes an intensification of the division of
labor and, thus, an increasing interdependence of groups which live at different
places. The division of labor forces those groups to maintain closer contact with each
other. Increased division of labor and exchange require a higher degree of safety of
communication and trade, that is, more or less, what lawyers call legal security, or
reliability of the law (Rechtssicherheit). This security, on its part, implies a higher
regularity and reliability of societal relations. As soon as local custom is not sufficient
any more to guarantee such reliability, this higher form of rationality can only be
achieved by increasingly subjecting the societal relations – particularly the political,
economic and military relations – in terms of both territory and function to a uni-
fied order. … The temporary outcome of that process of rationalization is the mod-
ern state. … In order to subordinate, directly or indirectly, all inhabitants of a
territory to the central authority, and to make everybody contribute to the effective-
ness of the central force, the organization as a whole needs a single comprehensive
plan—a normative constitution.55
Expressions like ‘unified order’ and ‘central force’ were used to describe the mod-
ern state. In order to avoid misconceptions about the character of the interna-
tional legal order I have in mind it may be better to avoid them. But generally
Heller’s explanation can be well applied to the idea of an international constitu-
tion. Similar to the development of state constitutions in the eighteenth and
nineteenth century, the present global intensification of traffic and trade, the
growing interdependence of people living in different continents of the world,
and the ensuing need for legal security and reliability can be regarded as driving
forces behind the process of constitutionalization.
There is, however, a decisive difference. Modern state constitutions were as
much a result of the rationalization of the exercise of power as of the determina-
tion of citizens to secure for themselves a sphere of individual rights and liberties
which the state, hitherto endowed with absolute might, would have to respect.56

53
Ibid. at 275 (my translation).
54
Ibid. at 264–65, 276–77.
55
Ibid. at 253, 271 (my translation).
56
See ibid. at 272–73.
 Constitution and its Association with Modern State 19

So far, this incentive to make a constitution is largely missing in the international

community. Although there is a certain unease about the active role the Security
Council has played since the end of the Cold War, and a possible encroachment
on the rights of states and individuals, the members of the international com-
munity do not feel that they must defend themselves against an international
leviathan. On the other hand, history shows that even in the situation of 1945,
when there was no unified international authority at all, states understood that
they had to renounce some of their rights for the sake of peaceful relations and
their common survival.

American Constitutional Theory: The Constitution as ‘Higher Law’ and as a

‘Living Institution’

‘By 1776’, the American historian Gordon S. Wood wrote, ‘the Americans had
produced out of the polemics of the previous decade a notion of constitution very
different from what eighteenth-century Englishmen were used to—a notion of a
constitution that has come to characterize the very distinctiveness of American
political thought’, namely the idea of a constitution ‘as a written superior law set
above the entire government against which all other law is to be measured’.57
It took, however, another ten years of wrestling with the problem of a constitu-
tion as ‘fundamental law’ – limiting the entire government, the representatives of
the people in the assemblies included – 58 until the authors of the Federalist Papers
(published in 1787–88 in defense of the new U.S. Constitution agreed upon at
Philadelphia in September 1787) clearly brought out the character of the consti-
tution as ‘higher law’ as its essential quality.59 James Madison accentuated ‘[t]he
important distinction so well understood in America between a Constitution
established by the people and unalterable by the government, and a law estab-
lished by the government and alterable by the government’. ‘Where no
Constitution, paramount to the government, either existed or could be obtained,
no constitutional security, similar to that established in the United States, was to
be attempted’.60 Alexander Hamilton defined a ‘limited constitution’ as ‘one

57
See Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969), at 260. For the
previous controversies in Britain and the American colonies, see also Bernard Bailyn, The
Ideological Origins of the American Revolution 175–98 (1992).
58
For the development of the distinction between fundamental and statutory law in the theory and
practice of the American States after 1776, see Wood, ibid. at 273–82.
59
For the origins of the concept of the supremacy of the Constitution, see Edward S. Corwin, The
‘Higher Law’ Background of American Constitutional Law, 42 Harv. L. Rev. 149 (1928).
60
The Federalist No. 53, at 331–32 (James Madison) (Clinton Rossiter ed., 1961).
20 Chapter One

which contains certain specified exceptions to the legislative authority’, and

which provides for a control of this authority by independent courts. ‘No legis-
lative act, therefore, contrary to the Constitution, can be valid. To deny this
would be to affirm that the deputy is greater than his principal; … that the
representatives of the people are superior to the people themselves … ’.61
‘The Constitution’, Hamilton held, ‘ought to be the standard of construction for
the laws, and … wherever there is an evident opposition, the laws ought to give
place to the Constitution. But this doctrine is not deducible from any circum-
stance peculiar to the plan of convention, but from the general theory of a lim-
ited Constitution’.62
Following those ideas, the U.S. Supreme Court asserted an authority of judi-
cial review as early as in 1803. The reader will recall Chief Justice John Marshall’s
famous statement in Marbury v. Madison:
The constitution is either a superior, paramount law, unchangeable by ordinary
means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former part of the alternative be
true, then a legislative act contrary to the constitution is not law: if the latter part be
true, then written constitutions are absurd attempts, on the part of the people, to
limit a power in its own nature illimitable. Certainly all those who have framed writ-
ten constitutions contemplate them as forming the fundamental and paramount law
of the nation, and consequently, the theory of every such government must be, that
an act of the legislature, repugnant to the constitution, is void … . If, then, the
courts are to regard the constitution, and the constitution is superior to any ordinary
act of the legislature, the constitution, and not such ordinary act, must govern the
case to which they both apply.63
Although the Framers regarded the Constitution as an authoritative text and the
highest form of law, ‘the legal tradition in which the Constitution came to be
immersed refused to share this ideal; here true law-givers were judges, who discov-
ered the true meaning of spoken and written normative sources generated by com-
peting power centers’. Case-law, following its own inner dynamics, reduced the
significance of the constitutional text, and the view that the Constitution is a char-
ter of principles conflicted with the heritage of judge-made law with its innate
skepticism about abstract rules and schemes.64 ‘[T]o a significant degree, the large
corpus of constitutional law formulated by the United States Supreme Court in
almost two hundred years of decision-making cannot be squared with the rules of

61
The Federalist No. 78, at 466–67 (Alexander Hamilton).
62
The Federalist No. 81, at 482 (Alexander Hamilton).
63
1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803).
64
See Mirjan R. Damaška, Reflections on American Constitutionalism, 38 Am. J. Comp. L. 421,
426–28, 442 (1990).
 Constitution and its Association with Modern State 21

the Constitution in the senses that they were intended by the constitution-makers
to carry’.65 Observing and justifying this development of the Constitution by prac-
tical application, American legal realism described ‘any working constitution … as
being in essence not a document, but a living institution built (historically, geneti-
cally) in first instance around a particular Document’.66
Wherever there are today established practices ‘under’ or ‘in accordance with’ the
Document, it is only the practice which can legitimize the words as being still part of our
governing Constitution. It is not the words which legitimize the practice. … [T]he
working Constitution is in good part utterly extra-Documentary. … This, plus the
less frequent fact of abrogation, ought to be enough in itself to kill the Cock Robin
of orthodox theory … and to dethrone the Words.
…
An institution is in first instance a set of ways of living and doing. It is not, in first
instance, a matter of words or rules … . Every living constitution is an institution … .
And the difference between a ‘written’ and an ‘unwritten’ constitution lies only in the
fact that the shape of action in the former case is somewhat influenced by the presence
of a particular document, and of particular attitudes toward it, and particular ways of
dealing with its language.
…
[T]he working Constitution is amended whenever the basic ways of government are
changed. … Indeed, amendment occurs typically by action of the relevant specialists
alone, and without alteration of the language of the Document.67
Influential as this Realist opinion has been, it has never remained unchallenged.68
In a dissenting opinion of 1966, Justice Hugo Black, for instance, artfully
defended positivist thought and criticized the majority ‘for consulting its own
notions rather than following the original meaning of the Constitution’. To him,
this was ‘an attack not only on the great value of our Constitution itself, but also
on the concept of a written constitution which is to survive through the years as
originally written unless changed through the amendment process which the
Framers wisely provided’.69 Being interested in American opinions on what makes

65
Kay, American Constitutionalism (supra note 31), at 48.
66
See Karl Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 3 (1934).
67
Llewellyn, The Constitution as an Institution, at 12, 15, 17–18, 22. The concept of ‘constitutive
process’ of the New Haven School (the ‘ongoing decision process in which authority and control are
deployed to establish, maintain and change over time the fundamental institutions of decision in
any community’) is influenced by this Realist understanding of the constitution as an ‘institution’.
See, e.g., W. Michael Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping
Law 14 (1987).
68
For a critical analysis of constitutional realism in the Progressive era, and of the following waves
of first ‘neo-constitutionalism’ and later ‘neo-realism’, see Herman Belz, Changing Conceptions
of Constitutionalism in the Era of World War II and the Cold War, 59 J. Am. Hist. 640 (1972).
69
See Harper v. Virginia Board of Elections, 383 U.S. 663, at 677–78 (1966) (Black, J., dissenting)
(emphasis added).
22 Chapter One

up a constitution, one thus must primarily look at the discussion about constitu-
tional interpretation.70
The authors quoted above mainly concerned themselves with the character and
function of a written constitution, and its relationship with a ‘constitution in a
material sense’. I want to conclude this overview with a voice seeking to define
constitutional ‘law’ (as opposed to constitutional ‘conventions’) in a legal system
without a consolidated constitutional instrument. A.V. Dicey stated:
Constitutional law, as the term is used in England, appears to include all rules which
directly or indirectly affect the distribution or the exercise of the sovereign power in
the state. … [T]he rules … include two sets of principles or maxims of a totally
distinct character.
The one set of rules are in the strictest sense ‘laws,’ since they are rules which
(whether written or unwritten, whether enacted by statute or derived from the mass of
custom, tradition, or judge-made maxims known as the common law) are enforced by
the courts; these rules constitute ‘constitutional law’ in the proper sense of that term,
and may for the sake of distinction be called collectively ‘the law of the constitution.’
The other set of rules consists of conventions, understandings, habits, or practices
which, though they may regulate the conduct of the several members of the sovereign
power, of the Ministry, or of other officials, are not in reality laws at all since they are
not enforced by the courts. This portion of constitutional law may, for the sake of dis-
tinction, be termed the ‘conventions of the constitution,’ or constitutional morality.71

Typical Constitutional Features

If we turn our attention to the constitutions of states presently being in force, we

find that, notwithstanding the different theories summarized above, today a con-
stitution almost universally presents itself as a complex of fundamental norms
governing the organization and performance of governmental functions in a

70
For selections of readings on the method of constitutional interpretation in the United States, see
Modern Constitutional Theory: A Reader (John H. Garvey & T. Alexander Aleinikoff eds., 3rd ed.
1994), ch. II (pp. 94–196), and Interpreting the Constitution: The Debate over Original Intent
(Jack N. Rakove ed., 1990). An informative look from the outside is provided by Winfried
Brugger, Grundrechte und Verfassungsgerichtsbarkeit in den Vereinigten Staaten von Amerika 345–
406 (1987).
71
A.V. Dicey, Introduction to the Study of the Law of the Constitution 23–24 (9th ed. 1945, E.C.S.
Wade ed.). In a decision of 1981, the Supreme Court of Canada likewise described the Canadian
Constitution as composed of legislative acts, common law rules, and constitutional conventions.
See [1981] 1 R.C.S. 753, quoted in Gérald-A. Beaudoin, La Constitution du Canada 10–12 (2d
ed. 1991). For an account of the history of English constitutionalism and its importance for the
early United States, see Charles Howard McIlwain, Constitutionalism: Ancient and Modern (re-
vised ed. 1947). See also Dieter Grimm, Der Verfassungsbegriff in historischer Entwicklung, in
id., Die Zukunft der Verfassung 101, 104–07 (1991).
 Constitution and its Association with Modern State 23

given state (‘frame of government’), and the relationship between the government
(broadly understood) and the citizens. So much was already clearly perceived by
Georg Jellinek at the beginning of the twentieth century.72 In a ‘bill of rights’ – be
it included in a comprehensive constitutional document or standing by itself –
citizens may be accorded certain fundamental rights and freedoms. The scope of
these rights and the citizens’ ability judicially to enforce them differ, however,
widely. More recently, also statements of policy goals, or constitutional direc-
tives73 (regarding, e.g., social welfare, culture, international peace, or the protec-
tion of the natural environment) feature prominently in constitutional texts.74
The instrument shall, in principle for an indefinite period of time, provide a legal
frame and guiding principles for the political life of a community.75 It is (positive)
law attributed to the sovereign (i.e., in a democratic state the people), binding on
all state institutions and in that respect paramount, extending to all members of
the society in question and, generally, governing the exercise of all public author-
ity. More often than not it is arranged in a single written text and more difficult
to amend than other law.76 The idea of constitutional supremacy, i.e., of the

72
See Georg Jellinek, Allgemeine Staatslehre 505 (3rd ed. 1913): ‘Die Verfassung des Staates umfasst
demnach in der Regel die Rechtssätze, welche die obersten Organe des Staates bezeichnen, die
Art ihrer Schöpfung, ihr gegenseitiges Verhältnis und ihren Wirkungskreis festsetzen, ferner die
grundsätzliche Stellung des einzelnen zur Staatsgewalt.’ (The constitution of a state regularly
consists of legal rules which describe the highest organs of the state, their creation, mutual rela-
tionship and sphere of activity, as well as the fundamental position of the individual in his or her
relation to the government.)
73
The German term is Staatszielbestimmungen. See, e.g., Grundgesetz [Constitution] art. 20a (pro-
tection of the environment) (added 1994). Their distinctive quality is that they do not bring
forth individual rights which could be juridically enforced.
74
For an early comparative analysis of such clauses in German constitutional law, see Ulrich
Scheuner, Staatszielbestimmungen, in Festschrift für Ernst Forsthoff 325 (Roman Schnur ed.,
1972). For a thorough monographic treatment, see Karl-Peter Sommermann, Staatsziele und
Staatszielbestimmungen (1997).
75
See Ulrich Scheuner, Verfassung, in id., Staatstheorie und Staatsrecht: Gesammelte Schriften 171,
172 (Joseph Listl & Wolfgang Rüfner eds., 1978). The political element is emphasized by
Smend, Schmitt, Heller and Hesse alike; see Smend, Verfassung und Verfassungsrecht (supra note
41), at 133; Schmitt, Verfassungslehre 20–25 (1928); Heller, Staatslehre 270 (1934); Hesse,
Grundzüge (supra note 46), at 5. However, the authors’ definition of what is ‘political’ differs.
Already in 1758, Vattel wrote that the ‘constitution is nothing else at bottom than the establish-
ment of the system, according to which a Nation proposes to work in common to obtain the
advantages for which a political society is formed’ (‘Cette Constitution n’est dans le fonds autre
chose, que l’établissement de l’ordre dans lequel une Nation se propose de travailler en commun
à obtenir les avantages en vûë desquels la Société Politique s’est établie’). See Vattel, Le Droit des
Gens (supra note 30).
76
See Dieter Grimm, Verfassung, in id., Zukunft (supra note 71), at 11. See also id., Deutsche
Verfassungsgeschichte 1776–1866, at 12–13 (1988); Ernst-Wolfgang Böckenförde, Geschichtliche
24 Chapter One

constitution taking precedence over law of ‘lower rank’ – with the consequential
possibility of unconstitutional, and therefore void, legislative acts – was generally
accepted only in the twentieth century.77 This feature was emphasized by James
Bryce in his essay on ‘flexible and rigid constitutions’.78 The idea gains practical
importance if courts (either all of them, or only higher courts, or a special consti-
tutional court) are empowered to review the constitutionality of such acts (‘judi-
cial review’).79
A good example of the normative and written type of constitution, to which
the American and the French Revolution gave birth and which subsequently con-
quered the world, is the Constitution of Virginia of June 29, 1776, which opened
with the words: ‘WE, the Delegates and Representatives of the good people of
Virginia, … do ordain and declare the future form of government of Virginia to
be as followeth’.80
The American and European ‘constituted’, or ‘constitutional’, state of the nine-
teenth and twentieth century gave the formal notion of constitution a specific
substantial meaning which by now has largely superseded the other denotations.
In 1776, the Concord Town Meeting declared that ‘a Constitution in its proper

Entwicklung und Bedeutungswandel der Verfassung, in id., Staat, Verfassung, Demokratie:

Studien zur Verfassungstheorie und zum Verfassungsrecht 29 (1991); Peter Badura, Verfassung, in 2
Evangelisches Staatslexikon 3737, 3747 (3d ed. 1987, Roman Herzog et al. eds.).
77
See Scheuner, Verfassung (supra note 75), at 175, 177. For a comparative analysis of contempo-
rary European constitutions, see Grewe & Ruiz Fabri, Droits constitutionnels européens (supra
note 34), at 37–40.
78
See James Bryce, Constitutions 8 (1905): ‘Other constitutions [i.e., the ones labelled rigid], most
of them belonging to the newer or Statutory class, stand above the other laws of the country
which they regulate. The instrument (or instruments) in which such a constitution is embodied
proceeds from a source different from that whence spring the other laws, is repealable in a differ-
ent way, exerts a superior force. It is enacted, not by the ordinary legislative authority, but by
some higher or specially empowered person or body. If it is susceptible of change, it can be
changed only by that authority or by that special person or body. When any of its provisions
conflict with a provision of the ordinary law, it prevails, and the ordinary law must give way.’
79
For a summary definition of a constitution similar to that offered in the preceding paragraph, see
Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in
Constitutionalism (supra note 31), at 152, 153–54. Raz sees constitutions (in what he calls a
‘thick sense’) as defined by a combination of seven features: (1) The constitution defines the
constitution and powers of the main organs of the different branches of government. (2) It is
stable, at least in aspiration. (3) It has a canonical formulation and is usually written. (4) It is
superior law. (5) It is justiciable. (6) It is entrenched (i.e., more difficult to amend than ordinary
legislation). (7) It expresses a common ideology (i.e., principles of government expressing the
common beliefs of the population about the way their society should be governed).
80
For text, see Sources and Documents Illustrating the American Revolution 1764–1788 and the
Formation of the Federal Constitution 151 (Samuel Eliot Morison ed., 2d ed. 1929, reprinted
1972).
 Constitution and its Association with Modern State 25

idea intends a system of principles established to secure the subjects in the posses-
sion and enjoyment of their rights and privileges, against any encroachments of
the governing part’, including even ‘the supreme legislature’.81 In that same sense
Article XVI of the French Déclaration des droits de l’homme et du citoyen of 1789,
which was made part of the constitution of 1791, read: ‘Toute société, dans
laquelle la garantie des droits n’est pas assurée ni la séparation des pouvoirs déter-
minée, n’a point de constitution.’ Human rights and political freedoms of citi-
zens, sovereignty and self-determination of the people, democracy and separation
of powers, rule of law—these partially overlapping terms describe the distinctive
content which the notion has acquired.82 Accordingly, a constitution was said to
be defined ‘par des éléments formels et matériels’. It is matter of form and
content.
Les premiers [les éléments formels] font d’elle un document, un texte écrit, un acte
juridique fondateur dont les normes sont supérieures aux autres normes de l’ordre
juridique. Les seconds [les éléments matériels] la font apparaître comme la charte
fondamentale qui énonce les règles du jeu de l’Etat et de la société.83
For its implementation and enforcement, constitutional law cannot rely upon
any higher law or authority. It is the structure of the constitution itself which
must ensure its effectiveness and duration.84 A constitution establishes rules
regarding the formation and exercise of political power. It is in constant interac-
tion with strong social forces (like political parties, pressure groups, bureaucratic
or military institutions) which it cannot completely control. In that sense, its

81
For text of the resolves, see ibid. at 176. See also the anonymous Pennsylvania author of Four
Letters on Interesting Subjects (1776): ‘All countries have some form of government, but few, or
perhaps none, have truly a Constitution.’ Quoted in Wood, Creation (supra note 57), at 267.
82
See, e.g., Josef Isensee, Staat und Verfassung, in II Handbuch des Staatsrechts der Bundesrepublik
Deutschland 3, 88 (Josef Isensee & Paul Kirchhof eds., 3rd ed. 2004); id., Staat, in 5 Staatslexikon
133, 140–41 (Görres-Gesellschaft ed., 7th ed. 1989), and Grimm, Verfassungsgeschichte (supra
note 76), at 10–13, 31–32. For typical contents of European constitutions, see Grewe & Ruiz
Fabri, Droits constitutionnels européens (supra note 34), at 41–45. See further Shannon
C. Stimson, Constitutionalism and the Rule of Law, in The Oxford Handbook of Political Theory
317 (John S. Dryzek et al. eds., 2006). For the correlation of a written constitution and a demo-
cratic form of government, see R.C. van Caenegem, An Historical Introduction to Western
Constitutional Law 170 (1995): ‘A fixed and clearly drafted Constitution, with the civil rights
precisely put down in writing, is more democratic than an opaque tangle of old and new customs
and traditions … which are nowhere to be found in writing.’
83
Grewe & Ruiz Fabri, Droits constitutionnels européens (supra note 34), at 33. In contrast, Carl
J. Friedrich, professor of government at Harvard University, put all emphasis on the substantive
side: ‘Constitution … is the process by which governmental action is effectively limited.’ See
Friedrich, Der Verfassungsstaat der Neuzeit 147 (1953).
84
For this and the following, see Scheuner, Verfassung (supra note 75), at 173–74.
26 Chapter One

existence is precarious. As Ulrich Scheuner, an eminent German constitutionalist

of the second half of the last century wrote, ‘fundamentally every constitution is
a blueprint of a political order with which the present seeks to bind the future’.85
If the framers are wise, they ordain rules sufficiently open and flexible to evolve
together with the community whose life they shall govern.86

85
Ibid. at 173.
86
For an argument in favour of ‘open and broad’ constitutional norms, see Hesse, Grundzüge
(supra note 46), at 11–12, 15–16.
Chapter 2
The Transfer of the Constitutional Idea
to the Sphere of International Law:
Different Approaches
If mankind is to achieve a more effective international organisation … the
development must be from international towards constitutional law.87
Wolfgang Friedmann

Many writers have used the notions of constitution and constitutional law with
regard to international law and, more particular, the United Nations (Charter).88
But only few have made an effort systematically to explain both the reasons and
the consequences of the adoption of constitutional ideas. Three schools of thought
can be identified to which such systematic efforts can be attributed: first the
school founded by the Viennese jurist Alfred Verdross, who started out from
Kelsen’s legal positivism but later both approached and influenced the main-
stream, second the New Haven School (or ‘policy-science approach’) with Myres
McDougal and Michael Reisman being the most prolific authors for the subject
under discussion, and thirdly (and partially influenced by the first) a group of
scholars, led by the late judge of the ICJ Hermann Mosler, his successor Bruno
Simma and Christian Tomuschat, advocating the ‘doctrine of international
community’. A fourth approach, styled ‘constructivism’, was developed by
Nicholas Onuf.
These major schools of thought have largely ignored each other. It is only here
that I try to engage them in a late conversation. The mutual disregard was not
simply an expression of intellectual self-importance but more so a result of the
fact that the ‘foundational’ works of the three schools date from very different
periods and, accordingly, addressed different questions arising from different
circumstances. Verdross began to write on the subject in the late nineteen-twenties

87
Friedmann, The Changing Structure (supra note 14), at 113 et seq. (referring to the evolution of
the European Communities as a possible ‘prototype of developments that may … eventually
extend to the international community as a whole’).
88
See supra, Introduction.
28 Chapter Two

(it is no coincidence that these were the ‘golden years’ of the League of Nations).
Myres McDougal and Harold Lasswell conceptualized their ‘world public order’
in the nineteen-fifties, with the unfolding Cold War increasingly leaving a mark
on their work. The more heterogeneous doctrine of international community can
be traced to the lectures Judge Mosler delivered in The Hague in 1974 but really
flourished only in the hopeful years after the end of the Cold War.
Of those different schools or approaches, which I shall analyze in more detail
on the following pages, today the ‘international community’ school is by far the
most influential in the literature of international law, in particular the European
literature. My own efforts, emphasizing the importance of the UN Charter, are
based on it. The term ‘the international community’ has become commonplace,
but more so in continental Europe than in Great Britain or the United States.

Alfred Verdross and his School

It is not by chance that the first scholar who established the notion of constitu-
tion in the context of international law came from a school assuming a unity of
(national and international) law.89 This scholar was Alfred Verdross, a student of
Hans Kelsen’s, who, in 1926, published a book entitled Die Verfassung der Völ-
kerrechtsgemeinschaft (The Constitution of the International Legal Community).90
In this study, which was based on Kelsen’s monism, he used the notion as describ-
ing ‘those norms which deal with the structure and subdivision of, and the distri-
bution of spheres of jurisdiction in, a community’.91 International law, Verdross
wrote, is not a mere collection of separate fragments having no connection with
one another, but a harmonious system of norms being rooted in a unified basic
order (einheitliche Grundordnung). He went on saying that

89
For one of Hans Kelsen’s many explanations of monism, see Die Einheit von Völkerrecht und
staatlichem Recht, 19 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 234 (1958);
reprinted in Die Wiener Rechtstheoretische Schule 2213 (Hans Klecatsky et al. eds., 1968). See also
Kelsen, General Theory (supra note 26), at 363 et seq. (‘The Unity of National and International
Law’).
90
For an evaluation of Verdross’ work, see the articles published in 6 Eur. J. Int’l L. (1995). See, in
particular, Bruno Simma, The Contribution of Alfred Verdross to the Theory of International
Law, ibid. at 33. For a brief comparison of the constitutional concepts of Verdross and Scelle, see
Eric Suy, The Constitutional Character of Constituent Treaties of International Organizations
and the Hierarchy of Norms, in Festschrift für Rudolf Bernhardt 267, 268–72 (Ulrich Beyerlin
et al. eds., 1995).
91
See Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft v (1926): ‘jene Normen, die den
Aufbau, die Gliederung und die Zuständigkeitsordnung einer Gemeinschaft zum Gegenstand
haben’.
 Transfer of the Constitutional Idea to International Law 29

[t]his constitution is, however, not set down in a document as is the case in most
modern states and the League of Nations, which is at present the most comprehen-
sive partial international legal community. Instead, it is founded on international
customary law … . From this united system of norms (Normenordnung) follows a
definite community, based upon norms (Normengemeinschaft) which is rightly called
international legal community (Völkerrechtsgemeinschaft) because it is a community
established by general international law. The international legal fundamental order is,
therefore, the constitution of the international legal community.92
Accordingly, neither Kelsen’s ‘basic norm’ nor international law as such was
understood to make up this constitution, but rather the fundamental principles
of international law determining its sources, subjects and implementation, and
the jurisdiction allocated to states.93
In his long life, Verdross repeatedly addressed the problem of an international
constitution and, within a certain spectrum, arrived at different conclusions.
Contrasting his original views of 1926 with those expressed in later works, one
must keep in mind that the theoretical conceptions on which they were based
changed over time.
Compared to his monograph of 1926, the first postwar edition of Verdross’
treatise on international law included a broader definition: ‘Those norms which
are constituting this community [of international law], can be called the constitu-
tion of the community of states in a substantive sense. But as [this notion] is used
in a broader or narrower meaning, it is possible to place either all or only the most
important rules of general international law under this heading’.94 According to
the author, the constitution of the universal community of states was based on
customary law and certain multilateral treaties, like the Kellogg-Briand Pact of
1928. Since the establishment of the League of the Nations in 1919 and subse-
quently the UN in 1945, the community of states also had a constitutional
instrument (Verfassungsurkunde), that is a constitution in a formal sense. This
constitution, however, was only ‘quasi-universal’ and existed only in the frame-
work of general international law.95
In the fifth edition of his treatise, published in 1964, Verdross returned to a
stricter definition, holding now that ‘the constitution of the universal community
of states is founded on those norms which states supposed to be valid when

92
‘… Die völkerrechtliche Grundordnung ist daher die Verfassung der Völkerrechtsgemeinschaft’
(ibid.).
93
However, this constitution itself was understood to be based on the rule pacta sunt servanda
which is described as the ultimate source (Urquelle) and basic norm (Grundnorm) of interna-
tional law. See Verdross, Verfassung (supra note 91), at 116, 128. See also ibid. at 28–33. For a
critique of Verdross’ views by Carl Schmitt, see Verfassungslehre 69–71, 363–64 (1928).
94
Alfred Verdross, Völkerrecht 74 (2d ed. 1950).
95
Ibid.
30 Chapter Two

international law was created, and which then were further developed by custom-
ary international law and certain multilateral treaties’.96 The use of the phrase ‘is
founded on’ indicates that those original norms – elsewhere described as ‘a struc-
ture of principles of law combining states to form an integrated whole’97 – and
the constitution are not identical. The latter therefore appears to be understood
in the same way as in the 1926 book. After reiterating that since the foundation
of the League of Nations and the UN the community of states also had a consti-
tution in a formal sense, the author said: ‘As the UN now includes almost all
states, and as the few states which are still missing have recognized its guiding
principles, the Charter has the tendency to become the constitution of the universal
community of states’.98
A book about the sources of international law, which Verdross published in
1973, opened with a longer chapter on ‘The constitution of the universal interna-
tional legal community’.99 Having summarized the historical development of
international law, the author wrote:
[T]he constitutional principles of the modern community of states came into being
uno actu with the formation of sovereign states. Therefore, the community’s original
norms resulted neither from a formal international agreement nor from custom, but
from an informal consensus among the rulers at that time by which they recognized
certain principles as legally binding. Consequently, these constitutional principles
are based on unwritten law but not on international customary law. We have to
distinguish original constitutional law from norms of formal treaty law and custom-
ary law, the latter being dependent on the former … .
Necessary constitutional norms are, in particular, those regarding the persons able
to create, and to be an addressee of, rules of international law, those regarding the
procedure in which these rules can be made, and, eventually, the rule about
the material limits of the contents of norms (jus cogens).100
As examples of such original constitutional principles – also described as
‘norms about fundamental rights and duties of states … constituting the abso-
lutely necessary prerequisite for a peaceful coexistence of states’ – 101 Verdross
mentioned the rule pacta sunt servanda, the principle of responsibility for
injury inflicted upon another subject of international law, and the obligation
to respect the territorial sovereignty and political independence of other

96
See Alfred Verdross, Völkerrecht 136 (5th ed. in collaboration with Stephan Verosta & Karl
Zemanek, 1964) (emphasis added).
97
Ibid. at 25.
98
Ibid. at 136 (emphasis added).
99
Alfred Verdross, Die Quellen des universellen Völkerrechts: Eine Einführung 13–37 (1973).
100
Ibid. at 20–21.
101
Ibid. at 31.
 Transfer of the Constitutional Idea to International Law 31

states.102 In spite of their higher rank, the constitutional principles, Verdross held,
can be amended in the same procedure as all other rules of international law.103
Verdross saw a close connection between constitutional principles so defined,
jus cogens, and obligations erga omnes. Having established three categories of trea-
ties prohibited by jus cogens, he concluded that, in each of the cases referred to,
obligations vis-à-vis the whole community of states were possibly violated. ‘These
obligations are therefore of an absolute character. They can be created either by a
concrete absolute prohibition or in the way that the UN Charter recognizes cer-
tain absolute goals. In the latter case, too, a treaty conflicting with these goals is
absolutely prohibited’.104 Accordingly, jus cogens describes those rules which guar-
antee that the fulfillment of obligations erga omnes is not impaired by treaties
entered into by the state who owes the respective obligation or by third parties.
Compared to jus cogens, constitutional law is the broader notion—only a part of
it also having the quality of jus cogens.
The original constitutional principles, which according to Verdross were fur-
ther developed by customary international law and multilateral treaties, made up
a constitution in a substantive sense (Verfassung im materiellen Sinne). At least in
part, they were adopted by the Covenant of the League of Nations and the UN
Charter.105 ‘The first constitutional instrument of international law (völkerrechtli-
che Verfassungsurkunde) was the Covenant which was replaced by the UN Charter
after World War II. Because of its tendency toward universality (which it has
almost achieved), the Charter can be regarded as anticipation of a constitution of
the universal legal community (antizipierte Verfassung der universellen Völkerrechts-
gemeinschaft)’.106
It can be expected that, in the foreseeable future, all states will belong to the UN.
Therefore, it can be assumed that soon all norms of the Charter will be a part of the
constitution of the international legal community (universelle Völkerrechtsgemeinschaft).
The organs established by the Charter would then become organs of the universal
community of states … .107
Another three years later, Verdross, together with his student Bruno Simma, held
that the constitutional law of the universal community of states had its foundation
in the UN Charter.108 In the past, the authors explained, one had to distinguish

102
Ibid. at 24, 25, 31.
103
Ibid. at 21.
104
Ibid. at 29.
105
Ibid. at 32.
106
Ibid. at 21.
107
Ibid. at 35 (emphasis added).
108
See Alfred Verdross & Bruno Simma, Universelles Völkerrecht: Theorie und Praxis 5 (1976).
32 Chapter Two

‘general international law’ from the law of the Charter, the latter only applying to
a part of the community (i.e., those states who had joined the United Nations).
But since the UN [now] includes almost all states and the few states which remain
outside have recognized its fundamental principles, the UN Charter has gained the
rank of the constitution of the universal community of states. Therefore, we had to
take the Charter as a starting point and explain the law which had been in force
before the Charter became operative in the framework established by the latter
because that [earlier] law is now binding only in so far as it has not been repealed
by the Charter … .109
The second part of Verdross’ and Simma’s book is entitled ‘The Constitutional
Principles of the Community of States’. Following the course of history, its three
chapters deal with ‘The Constitution of the Non-organized Community of States’,
‘The Reinforcement of the International Constitutional Principles by the League
of Nations’ and ‘The Constitution of the United Nations’, respectively. According
to the authors, the ‘constitution of the modern [non-organized] community of
states’ resulted from the formation of sovereign territorial states having recog-
nized each other as equal subjects of international law. It was ‘a system of original
norms (Gefüge originärer Normen) the validity of which was presupposed by the
states themselves as the basis for international law created by them by mutual
agreement’. The authors approvingly quoted the Italian scholar Rolando Quadri
to whom the principles of consuetudo est servanda and pacta sunt servanda were
such primary norms. Since this ‘first’ international constitution did not provide
for any centralized organs of the community of states, the community was a ‘non-
organized’ one.110 This definition was narrower than the one of 1926, 1964 and
1973. Now it was the original norms themselves (and not a more comprehensive
system of rules about the sources, subjects and implementation of international
law based upon those norms) which were identified with the ‘constitution’.
After short comments on the League of Nations as the ‘first comprehensive
political organization of the community of states’ and the reinforcement of the
constitutional principles of international law by its Covenant, Verdross and
Simma turned to the United Nations:
The UN … has been founded by a multilateral treaty on the basis of general inter-
national law being in force at the time. It redesigned the classical international law
of the non-organized community of states, which had returned to life after the
breakdown of the League, as the order of the newly organized international com-
munity. However, in the beginning the UN Charter was just the constitution of a
partial structure (Teilordnung) within the universal system of international law

109
Alfred Verdross & Bruno Simma, Universelles Völkerrecht: Theorie und Praxis vii–viii (3d ed.
1984) (emphasis added).
110
Verdross & Simma (3d ed.), at 59–60, 62.
 Transfer of the Constitutional Idea to International Law 33

because the UN originally included only fifty-one states. But since almost all states
have become members of that organization and the remaining states have recog-
nized its fundamental principles, the UN Charter has gained the rank of the funda-
mental order of present universal international law … . General international law as it
had hitherto been in force was incorporated into the new universal order.111
Verdross and Simma used the term ‘constitution’ in a normative sense.
‘Constitution’ is a set of rules of international law which take precedence over
other norms in so far as their existence is a precondition for the validity of the
latter from a logical and a legal point of view: ‘We must distinguish between the
norms created by international consensus and those the validity of which is pre-
supposed in that process’.112 At the same time constitution was defined as an out-
come of history or, in other words, a result of an actual agreement among states
at a particular point of time, rather than a theoretical construct. In the develop-
ment of modern international law, this constitution has become ever more com-
prehensive, regarding both its geographic sphere of operation and the complexity
of its rules. Starting with a few limited principles, mainly concerning the creation
of international law, this constitution now includes far-reaching substantive rules
all states must comply with. When the United Nations gained universal accept-
ance by states, its founding document replaced the (substantive) constitution of
the non-organized community of states—for the first time, a written text became
the constitution of the world community.113
In sum, it may be said that the notion of constitution of the universal com-
munity of states as developed by Professors Verdross and Simma oscillates between
general principles of law common to states, enabling them to enter into legal rela-
tions and to build a legal community, and a more comprehensive system of
‘primary’ rules which can be of a formal or a substantive character.114 Whereas,

111
Verdross & Simma (3d ed.), at 72. See also ibid. at 221: the UN Charter as ‘the present consti-
tution of the universal legal community (gegenwärtige Verfassung der universellen Völkerrechts-
gemeinschaft)’. Emphasis added.—The theory that general international law has been incorpo-
rated by the Charter was supported by Albert Bleckmann, Comment on Art. 2(1), in The
Charter of the United Nations: A Commentary 77, 79 (Bruno Simma ed., 1994): ‘[T]he UN
Charter basically absorbed the whole corpus of existing international law’.
112
Verdross & Simma (3d ed.), at 60.
113
Cf. also Bruno Simma, From Bilateralism to Community Interest in International Law, 250
Recueil des Cours 217, 260–62 (1994): ‘On the formal side, a constitution enjoys priority over
“ordinary” rules; with regard to substance, it lays down the basic rules governing the life of a com-
munity. … If we apply these concepts to the United Nations Charter, it meets most of the criteria
just mentioned. … I have no problems at all with viewing the basic norms of the Charter as the
constitutional law of the universal international community, and the Charter organs, at least in prac-
tical terms, as organs of the international community of States as a whole’. (Emphasis added.)
114
In Verdross’ work, the notion of constitution was increasingly associated with substantive rules.
According to Verdross, modern international law developed from the common principles of law
34 Chapter Two

therefore, the theoretical concept is not all too precise, the eventual outcome is
clear enough: Today, the UN Charter is supposed to be the (written) constitution
of the international community. In the beginning 1990s, this opinion was shared
by a number of international lawyers,115 so that in 1995 Simma concluded that
‘[i]n the last few years the view that the UN Charter is a true constitutional
instrument of the community of states has gained wide acceptance’.116 In fact,
already in 1962 – and, so it appears, independently of Verdross’ work – Sir
Humphrey Waldock had concluded that ‘[t]he United Nations has come more
and more to wear the look of a true political organisation of the world and the
Charter that of a world constitution … . Accordingly, it may be legitimate and even
necessary to-day to regard the Charter as the fundamental constitution and law of
the international community’.117
‘The Charter-as-constitution view informs and determines the entire system
of his [Verdross’] last treatise’, Judge Simma wrote in an essay honoring his
mentor.118 The main consequence of this view was to give up the traditional dis-
tinction between ‘general international law’ and the law of the Charter. Instead,

of the Christian world. In his view, the UN Charter secularized, universalized and supple-
mented these principles, while also adding new ones.
115
See Heribert Franz Köck, UN-Satzung und allgemeines Völkerrecht: Zum exemplarischen
Charakter von Art. 103 SVN, in Festschrift für Karl Zemanek 69, 88–89 (Konrad Ginther et al.
eds., 1994), and Georg Ress, The Interpretation of the Charter, in I The Charter of the United
Nations: A Commentary (Bruno Simma ed., 2d ed. 2002), at 13, 15 et seq., 30: ‘[the Charter’s]
similarity to national constitutional law’, ‘its status as a constitution for the world community’,
‘[the Charter as] “constitution for the universal society”’. See further Louis Henkin, The
Mythology of Sovereignty, in Essays in Honour of Wang Tieya 351, 357 (R. St. J. Macdonald ed.,
1993): ‘The international system has had a social contract at least since the seventeenth century,
reflected in a network of international law … . The end of the Second World War saw a new
social contract represented in the UN Charter’.
See also Rudolf Bernhardt, Comment on Art. 103, in II The Charter of the United Nations (2d
ed.) 1292, who somewhat hesitantly embraced the concept with the following remarks: ‘[T]he
Charter presumes or aspires to be the “constitution” of the international community accepted
by the great majority of states’ (1295), ‘[t]he Charter has become the “constitution” of the in-
ternational community’ (1298), and ‘[the] Charter … may become a real and effective constitu-
tion for the international community’ (1302), and, finally, Wolfgang Graf Vitzthum, Comment
on Art. 2(6), in I The Charter of the United Nations (2d ed.) at 140, 146: ‘If one regards the UN
Charter, which has gained almost universal acceptance, as the fundamental legal order or con-
stitution of the community of states …’.
116
See Bruno Simma, Human Rights, in The United Nations at Age Fifty: A Legal Perspective 263,
270 (Christian Tomuschat ed., 1995). See also Simma, From Bilateralism to Community
Interest (supra note 113), at 260: ‘the UN Charter has almost universally been recognized as the
constitutional document of the international community of States’.
117
See Sir Humphrey Waldock, General Course (supra note 3), at 36, 38 (emphasis added).
118
See Simma, Contribution (supra note 90), at 43.
 Transfer of the Constitutional Idea to International Law 35

the presentation of the former (i.e., the subjects and sources of international law,
the law of state responsibility, etc.) was integrated into that of the latter. The authors
began with a comprehensive analysis of ‘The constitution of the United Nations’,
and only then presented the standard subject matters of an international law text-
book under the title ‘The reception and transformation of the traditional rules of
international law by the UN Charter’.119 This integrative approach was surely a big
step forward, compared to the average textbook which still mentions the UN in
passing as an example of an “important” international organization,120 as if its
existence was a neglectable detail of contemporary international law.
But the Verdross & Simma approach turned out to be largely programmatic.
The authors shied away from drawing those conclusions which alone appear to be
logical. They oscillated between their novel constitutional approach and a ‘tradi-
tional’ perception of the Charter as a treaty governed by the rules of general
international law.121 Take, for instance, the question of amendments to the
Charter. In his 1973 book, Verdross said that the Charter, ‘because it was estab-
lished on the basis of the constitution of the international legal community’,
cannot only be amended according to its Articles 108 and 109 but also in every
other way provided for by that constitution, that is by any kind of international
agreement or customary law.122 But if the Charter must now be understood as ‘a
part’ of that very constitution,123 so that the instrument and its (original?) ‘legal
basis’ have merged and the Charter has risen to the constitutional level, there is
no higher category of law anymore which could take precedence over the explicit
rules of the Charter. The problem of the relationship between the Charter and

119
See Verdross & Simma, part 3 of the 2d and 3d ed., respectively.
120
See, e.g., Brownlie, Principles (supra note 21). According to the index, the UN Charter is first
being dealt with on pp. 292–94, that is almost halfway through the book, in the context of
domestic jurisdiction of states. As far as I see, the Verdross & Simma approach has remained
unique.
121
For this conflict between progressiveness and traditionalism see also see following comment by
Professor Simma of 1995: ‘While this development [the wide acceptance of the view that the
UN Charter is a true constitutional instrument of the community of states] is undoubtedly to
be regarded as positive with regard to the recognition of the substantive purposes and principles
of the organization as constitutional principles for inter-state relations in general, such a “con-
stitutionalist” view of Charter law may easily lead to problems and misunderstandings if it is
uncritically extended to the organizational structure of the UN … . Considering … the UN
instruments and mechanisms for the protection of human rights, a “constitutionalist” view of
the UN Charter and organization might give the erroneous impression that the UN human
rights system is “tight” and highly integrated, in other words, that it is holding its member states
in a firm grip, somehow analogous to the ways in which modern developed states enforce their
authority’. See Simma, Human Rights (supra note 116), at 270.
122
See Verdross, Quellen (supra note 99), at 35–36.
123
See supra text accompanying note 107.
36 Chapter Two

‘general international law’ is even more striking in Verdross’ and Simma’s treatise.
Here, it is simply stated that the Charter ‘is an international treaty which can be
amended according to the generally applicable rules’.124 But is it possible, or
meaningful, to call a set of rules applying to a legal community its ‘constitution’
if these rules are governed by yet another set of rules? At the same time, the
Charter, as the constitution of the international community, is said to have incor-
porated ‘general international law’. Do then the ‘generally applicable rules’ exist
on the same (constitutional) plane as the norms of the Charter proper? If this is
true, it remains unclear which rules of general international law the Charter has
incorporated with the consequence that they share its constitutional quality. It
seems that two fundamentally different views have not been reconciled—the tra-
ditional perception of the Charter as a treaty and the constitutional approach
which, if it is taken seriously, cannot make the validity of the Charter as a consti-
tution depend on norms outside the Charter.

The New Haven School

Confronting the analytical tradition and its preoccupation with rules, and further
developing earlier sociological approaches to law, the New Haven School of
Jurisprudence is ‘emphatically oriented to process and context’.125 A reader not
familiar with the School’s general ideas126 must be careful not too misread terms
like ‘constitutional’ and ‘constitutive’ which here have a meaning distinctly differ-
ent from that prevailing in ‘mainstream’ legal writing.
A key term of the School, which was founded by Myres S. McDougal and
Harold D. Lasswell of Yale University, is the ‘constitutive process’. The concept
was described as
the decisions which identify and characterize the different authoritative decision-
makers in a community, specify and clarify basic community policies, establish
appropriate structures of authority, allocate bases of power for decision and sanc-
tioning purposes, authorize procedures for making the different kinds of decisions,

124
Verdross & Simma (3d ed.) (supra note 109), at 168.
125
See Nicholas Onuf, The Constitution of International Society, 5 Eur. J. Int’l L. 1, 5 (1994).
126
For two instructive summary statements, see Myres S. McDougal & W. Michael Reisman,
International Law in Policy-Oriented Perspective, in The Structure and Process of International
Law: Essays in Legal Philosophy, Doctrine and Theory 103 (R.St.J. Macdonald & Douglas M.
Johnston eds., 1986), and W. Michael Reisman, The View from the New Haven School of
International Law, 86 Am. Soc’y Int’l L. Proc. 118 (1992), reprinted in International Law in
Contemporary Perspective 1 (W. Michael Reisman et al. eds., 2004). For a critical analysis of the
New Haven School, see Sandra Voos, Die Schule von New Haven: Darstellung und Kritik einer
amerikanischen Völkerrechtslehre (2000).
 Transfer of the Constitutional Idea to International Law 37

and secure the continuous performance of all the different kinds of decision func-
tions (intelligence, promotion, prescription, etc.) necessary to making and adminis-
tering general community policy.127
The constitutive process is authoritative power exercised to provide an institu-
tional framework for decision and to allocate indispensable functions; the particular
decisions emerging from this process, which we call ‘public order’ decisions, may be
specialized to the shaping and sharing of wealth, enlightenment, respect, and all
other values. These distinctions, between constitutive and other decisions, are mat-
ters of relative emphasis, not exclusion; every use of authoritative power has some
influence, however slight, on the predispositions and capabilities that are part of the
decision process.128
Seen in the light of this theory, the UN Charter is the outcome of a constitutive
decision. In particular, it identifies authoritative decision-makers and procedures
for decision-making. At the same time, further constitutive decisions can origi-
nate in the Organization. Think, for example, of the Security Council entrusting
a subbody with making certain decisions. ‘As the keystone of the contemporary
system of international governmental organizations, [the UN] provides the back-
bone structure of authority for the global constitutive process in order to secure
both minimum and optimum world order’.129 Moreover, the Charter is regarded
as ‘the most comprehensive prescription of world policy in history’.130
As Professor McDougal explained, the term ‘constitutive’ is ‘somewhat broader
than the more traditional word “constitutional” ’.131 While, accordingly, the
School’s earlier work had preferred the term ‘constitutive’ with reference to the

127
Harold D. Lasswell & Myres S. McDougal, I Jurisprudence for a Free Society: Studies in Law,
Science and Policy 93 (1992). A shorter definition goes as follows: ‘These are decisions about
decision-making itself … ’. See W. Michael Reisman, Law from the Policy Perspective, in Myres
S. McDougal & W. Michael Reisman, International Law Essays: A Supplement to International
Law in Contemporary Perspective 1, 9 (1981) (originally published in 1976). See further
W. Michael Reisman, Unilateral Action and the Transformations of the World Constitutive
Process: The Special Problem of Humanitarian Intervention, 11 Eur. J. Int’l L. 3, 7–14 (2000)
(distinguishing between four ‘constitutive configurations’: (1) unorganized and non-hierarchi-
cal constitutive structures, (2) ineffective constitutive structures, (3) effective but limited consti-
tutive structures, and (4) effective constitutive structures).
128
Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive
Process of Authoritative Decision, in International Law Essays, at 191, 192.
129
Lung-chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective
51 (1989).
130
Myres S. McDougal, International Law, Power, and Policy: A Contemporary Conception, 82
Recueil des Cours 133, 234 (1953 I).
131
Myres S. McDougal, International Law and the Future, 50 Miss. L. J. 259 (1980), reprinted in
McDougal & W. Michael Reisman, International Law in Contemporary Perspective: The Public
Order of the World Community—Cases and Materials, at 92, 93 (1981).
38 Chapter Two

Charter (‘constitutive document’)132 and had used the expression ‘world constitu-
tional law’ only in quotation marks,133 the word ‘constitution’ and the attribute
‘constitutional’ were later used without discernible reservations.134 ‘Constitutive’
and ‘constitutional’ now seem to be exchangeable attributive adjectives. This does,
however, not mean that less importance is attached to a recognition of a broad
constitutive process—whether in a national or an international framework:
What we call a ‘constitution’ is really a very opaque symbol for a constitutive process
in which a variety of groups and individuals drawing on bases of effective power and
authority symbols seek to create, sustain or change the fundamental institutions of
decision-making in a community.135
Accordingly, the Charter-based procedures are only part of a ‘network of practices
specialized to decision’;136 the Charter ‘is only a part of [the] ongoing world con-
stitutive process’.137 ‘[D]ocument writing—the drafting of a “constitution”—
‘should not be identified with this process.138 The New Haven School is concerned
with the ‘description and appraisal of the whole factual constitutive process’ rather

132
McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 240, 248. See
also id. at 267 (describing Art. 39 of the Charter as ‘[t]he most fundamental constitutive pre-
scription on the order of “regulation” ’), and McDougal, International Law, Power, and Policy
(supra note 130), at 208 (the ‘constitutive role [of agreements between nation-states] may be
observed in the establishment of fundamental charters for international organizations, such as
for the League of Nations, the United Nations …’).
133
See McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 195. See
also id. at 215: ‘principles of “constitutional” priority’, and Myres S. McDougal, Perspectives for
an International Law of Human Dignity, in McDougal & Associates, Studies in World Public
Order 987, 1008 (1987): ‘ “constitutional” allocation of competence between the general com-
munity (or larger groupings) of states and particular states’ (originally published in 1959).
134
See W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 Am. J. Int’l L. 83,
100 (1993); Chen, Introduction (supra note 129), at 435–36; Richard A. Falk, The United
Nations and the Rule of Law, in Preferred Futures for the United Nations (Saul H. Mendlovitz &
Burns H. Weston eds., 1995) 301, 312 (‘The Charter as Constitutional Frame’).
135
Reisman, Law from the Policy Perspective (supra note 127), 11. For a similarly broad definition
of ‘global constitutionalism’, see Richard A. Falk, Robert C. Johansen & Samuel S. Kim, Global
Constitutionalism and World Order, in The Constitutional Foundations of World Peace (Richard
A. Falk et al. eds., 1993), at 9: ‘a set of transnational norms, rules, procedures, and institutions
designed to guide a transformative politics dedicated to the realization of world order values
both within and between three systems of intersecting politics in an interdependent world [the
states system, the system of international governmental institutions, and the NGO and critical
social movements’ system]’.
136
McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 194.
137
Reisman, Constitutional Crisis (supra note 134), at 100. It is interesting to compare this con-
cept with Smend’s view of a constitution as a normative part of a wider process of integration.
See supra text accompanying note 41.
138
McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 198.
 Transfer of the Constitutional Idea to International Law 39

than with a ‘description of a number of formal governmental structures’.139 Seeing

law ‘from the policy perspective’,140 the School insists that the ‘changing features
of “world constitutional law” are to be understood by perceiving the intimacy of
interplay between law and the entire social process of the world community’.141
International organizations may be both participants and arenas in the global
constitutive process.142 A participant is defined as ‘an individual or an entity which
has at least minimum access to the process of authority in the sense that it may
make claims or be subjected to claims’.143 An arena, i.e. a ‘decision structure’, can
be organized or unorganized, centralized or decentralized, specialized or non-
specialized, continuous or established ad hoc.144
From this it follows that the New Haven School cannot support the idea of the
UN Charter as a constitution in a normative meaning, i.e. as written constitu-
tion of the international community.145 The School is not concerned about a
weakening of state freedom caused by an expansion of the scope of obligations
arising for states. But it must reject international constitutional law so under-
stood as an antiquated revival of normativism or an inadequate ‘conventional
constitutionalism’.146 As Professor McDougal once remarked, policy-oriented
science is not interested in verbalisms, but seeks to answer ‘the important ques-
tions …: [W]ho formulates and applies what policies, with respect to whom, by
what practices, with what sanctions, across what boundaries, and with what
effects upon postulated goal values’.147 In the School’s view, the UN Charter is an
expression of ‘constitutive decisions’ establishing a process of authoritative deci-
sion:148 ‘The decision about making decisions for the world was taken in 1945 at
San Francisco’.149 ‘The creation of the United Nations in 1945 was the culmination

139
Ibid. at 198–99.
140
See Reisman, Law from the Policy Perspective (supra note 127).
141
McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 195.
142
Ibid. at 226.
143
Ibid. at 222.
144
Ibid. at 206, 208–11. For a classification of arenas according to their institutional structures,
geographical range and duration, see ibid. at 243–47.
145
But see Richard A. Falk, The Pathways of Global Constitutionalism, in The Constitutional
Foundations of World Peace (supra note 135), at 13, 15–16, who deems it possible that ‘the UN
could be transformed sufficiently in the future to provide the essential central guidance machin-
ery for the first global constitutional order in history’ and envisages a ‘global constitution’
defined as ‘an organic law for the community of states, nations, and peoples which frames and
constitutes the political world’.
146
See McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 226.
147
McDougal, International Law, Power, and Policy (supra note 130), at 184–85.
148
See supra text accompanying note 129.
149
Reisman, Law from the Policy Perspective (supra note 127), at 10. See also McDougal, Lasswell &
Reisman, World Constitutive Process (supra note 128), at 226.
40 Chapter Two

of efforts to establish a constitutive process approximating [one that] has hierar-

chical institutions that are effective and can meet the authorized demands of
those who participate in it’.150 However, as was already pointed out,151 the process
of writing a ‘constitution’ is seen as just the beginning of a continuing ‘constitu-
tive process’.
[T]he fundamental decision-making process of a group can in no realistic sense be
viewed as a frozen legacy or relic of the past. There is a constant stress for change and
for stability by different groups and individuals using the different power bases at
their disposal and the process constantly accommodates to basic dispositions of
authority and effective power.152
Since 1945, ‘the constitutive process has developed the organization’s authorita-
tive activities enormously, terminating some processes, creating others and con-
stantly reclarifying primary and instrumental policies’.153 ‘Constitutive’ decisions,
the School thus will say, have been made which have changed or abrogated the
rules of the Charter. Authoritative decision-makers other than the UN have been
identified; different procedures, formal as well as informal, for making decisions
have been authorized. Lastly, the substantive provisions to which the rules of
procedure refer, in particular the principle of non-use of force (Article 2, para-
graph 4 of the Charter), may have been modified.
The problem with this intellectually impressive approach, as I see it, is that law
as it appears ‘in the books’ is easily called into question while only skilled observ-
ers are able to determine in an ambitious exercise the ‘new’ law supposed to be
applicable at a given moment of time. The outcome of this operation is, of course,
again open to criticism. Influenced by the realist movement’s critique of textual-
ism, the School has pushed the inductive method in international law to its
limits.154
However, a constitution in its established meaning shall authoritatively, and as
clearly as possible, inform all members of a legal community of their rights and
responsibilities, the institutions set up by the constitution, and their powers and
procedures. Every member of the group shall be able to rely on the wording of the
constitution as long as is has not been amended in the way provided for in the
instrument itself. ‘[A] constitution can be a fundamental order existing as a mat-
ter of fact. But with respect to its contents, general validity and duration it only

150
Reisman, Unilateral Action (supra note 127), at 12.
151
See supra text accompanying notes 136–144.
152
Reisman, Law from the Policy Perspective (supra note 127), at 10.
153
See McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 226.
154
See also the critique by Martti Koskenniemi, From Apology to Utopia: The Structure of International
Legal Argument, at 170, 176 (1989): ‘blurring the law/politics distinction will result in a law
which seems to exist everywhere but which is devoid of critical, normative force’.
 Transfer of the Constitutional Idea to International Law 41

becomes reliable if it has been put into legal terms and given the form of a written
instrument’.155 It is this unambiguousness of its legal foundations which the
international community would win by recognizing – or rediscovering – the
Charter of the United Nations as its constitution. Constitutional interpretation
provides for the necessary adjustment to new circumstances. ‘A difficult balance
must thus be found between maintaining, on the one hand, the sanctity of the
constitution and the concept of the rule of law, and, on the other, ensuring
through imaginative interpretation the survival of the Organization in the stress
and strain of modern civilization’.156

The Doctrine of International Community

While, against the background of traditional international law, Professor Verdross’

concept was a bold and revolutionary one, and the New Haven School developed
a new and distinctive approach which stressed the interdependence of law and
politics, the ideas first advanced by the late Judge of the International Court of
Justice Hermann Mosler represent a cautious, but nevertheless consequential tran-
sition from traditional doctrine to a more progressive theory.157 In his lectures

155
Paul Kirchhof, Die Identität der Verfassung in ihren unabänderlichen Inhalten, in I Handbuch
des Staatsrechts der Bundesrepublik Deutschland 775, 776 (Josef Isensee & Paul Kirchhof eds.,
1987). See also van Caenegem, Western Constitutional Law (supra note 82), at 169–70, and
Hesse, Grundzüge (supra note 46), at 14–15. For an inquiry into the foundations and the his-
torical development of the idea of a written constitution, see Hasso Hofmann, Zur Idee des
Staatsgrundgesetzes, in Recht – Politik – Verfassung: Studien zur Geschichte der politischen
Philosophie 261 (1986), and id., Zu Entstehung, Entwicklung und Krise des Verfassungsbegriffs,
in Liber Amicorum Peter Häberle 157 (Alexander Blankenagel et al. eds., 2004).
156
See Louis B. Sohn, Expulsion or Forced Withdrawal from an International Organization, 77
Harv. L. Rev. 1381, 1423 (1964).
157
There are many scholars, past and present, who have promoted the idea of an international legal
community but are not mentioned in this section. Only those are considered who have linked
the community idea in a more direct way to a constitutional concept. Judge Simma has ad-
vanced the idea of community interest in international law in a particularly strong and influen-
tial way (see, especially, his 1994 Hague lectures, supra note 113) and must therefore be ad-
dressed as a principal representative of an ‘international community school’. It is only for reasons
of clarity that I have chosen to deal with his work in the first section of this chapter. – For a
thorough analysis of the concept of the international community in international law, see
Andreas L. Paulus, Die internationale Gemeinschaft im Völkerrecht (2001). See also René-Jean
Dupuy, Communauté internationale, in Répertoire de Droit International Dalloz 1 (1998),
reprinted in id., Dialectiques du droit international 309 (1999); and Daniel Thürer, Recht der
internationalen Gemeinschaft und Wandel der Staatlichkeit, in Verfassungsrecht der Schweiz –
Droit constitutionnel suisse 37 (Daniel Thürer et al. eds., 2001).
42 Chapter Two

delivered at the Hague Academy in 1974, he sought to depict ‘the international

society as a legal community’158—that is, ‘to show how the international society,
consisting of States and organisations set up by States, constitutes a community
governed by law’.159 As regards our quest for an international constitution, Judge
Mosler remarked:
The constitution of a society, whether it regulates life within a State or the coex-
istence of a group of States, is the highest law in society. It transforms a society
into a community governed by law. It provides for the necessary organisation and
for the division of competence of organs established under fixed procedural rules.
In spite of the lack of a general constitution for the functioning of the interna-
tional community there are many constitutional elements of varying form and
importance.
…
Any society, however unorganised it may be, must have one essential constitutional
rule in the absence of which it would not be a community but simply a collection of
individuals. This is the rule according to which law is created and developed.160
In earlier times, Mosler proceeded, this rule was the principle of consensus.161 The
author thus emphasized the formal side of a constitution—that part concerned
with the creation, validity and termination of law.162 ‘Constitution’ appears to be
another word for Kelsen’s Grundnorm, the basic norm of a system of positive law
upon which the validity of all other norms depends. It shall provide the ultimate
basis of obligation in a legal system. This doctrine also plays a role in the theory
set forth by Professors Verdross and Simma.163 Substantive principles do not seem
to belong to a constitution so understood, at least not to its core. This impression
is reinforced by the very next chapter of Mosler’s book in which he elaborated on
a concept of ‘international public order’:

158
140 Recueil des Cours (1974 IV). Six years later, a revised version of the lectures was published
as a book: Hermann Mosler, The International Society as a Legal Community (1980), from which
the following quotations are taken. See also Mosler’s short article ‘International Legal
Community’ in the Encyclopedia of Public International Law (1984), reprinted in the work’s
consolidated version: II Encycl. Pub. Int’l L. 1251 (1995).
159
Mosler, International Society, at xv.
160
Ibid. at 15–16. See also ibid. at 85 (‘constitutional rules governing the law-creating process’),
and International Legal Community (supra note 158), at 1252.
161
See Mosler, International Society (supra note 158), at 16.
162
Ibid. at 84–85.
163
See supra text accompanying note 110. The point, stressed for the non-organized community of
states, apparently fades in importance in the contemporary community of states. The primary
norms about law creation must, however, be regarded as having been incorporated by the con-
stitutional law of the UN Charter together with the other principles of general international
law. See supra text accompanying note 111.
 Transfer of the Constitutional Idea to International Law 43

In any legal community there must be a minimum of uniformity which is indispen-

sable in maintaining the community. This uniformity may relate to legal values
which are considered to be the goal of the community or it may be found in legal
principles which it is the duty of all members to realise. It may relate to legal rules
which are binding within the community. The whole of this minimum can be called
a common public order (ordre public international ). The international community
cannot dispense with this minimum of principles and rules as without them it would
cease to exist.164
Referring to Sir Humphrey Waldock, Mosler additionally characterized these
fundamental principles as ‘rule[s] from which States cannot at their own free will
contract out’.165 What comes to mind is the doctrine of jus cogens, and, indeed,
the public order concept stems from that doctrine. In his 1953 report on the law
of treaties, Sir Hersch Lauterpacht remarked in his comment on Article 15 of the
draft convention:
[T]he test whether the object of the treaty is illegal and whether the treaty is void for
that reason is not inconsistency with customary international law pure and simple,
but inconsistency with such overriding principles of international law which may be
regarded as constituting principles of international public policy (ordre international
public). These principles need not necessarily have crystallized in a clearly accepted
rule of law such as prohibition of piracy or of aggressive war. They may be expressive
of rules of international morality so cogent that an international tribunal would
consider them as forming part of those principles of law generally recognized by
civilized nations which the International Court of Justice is bound to apply by virtue
of Article 38 (3) of its Statute.166
Mosler, on his part, acknowledged ‘a close connection between jus cogens and
public order of the international community’, but insisted that the two are not
identical.167 The latter concept was understood as having a wider meaning

164
Mosler, International Society (supra note 158), at 17 (footnote omitted).
165
Ibid. See also id. at 18: ‘The public order of the international community … consists of princi-
ples and rules the enforcement of which is of such vital importance to the international com-
munity as a whole that any unilateral action or any agreement which contravenes these princi-
ples can have no legal force’. For the full Waldock quote, a comment on Art. 13 of the Draft
Convention on the Law of Treaties as of 1963, see [1963] 2 Y.B. Int’l L. Comm’n 36, at 52:
‘Imperfect though the international legal order may be, the view that in the last analysis there is
no international public order – no rule from which States cannot at their own free will contract
out – has become increasingly difficult to sustain. The law of the Charter concerning the use of
force and the development – however tentative – of international criminal law presupposes the
existence of an international public order containing rules having the character of jus cogens’.
Here, jus cogens was understood as an indispensable part of the international public order.
166
[1953] Y.B. Int’l L. Comm’n 155.
167
Mosler, International Society (supra note 158), at 19. See also International Legal Community
(supra note 158), at 1253–54.
44 Chapter Two

because the rules belonging to it ‘apply not only to the members of the interna-
tional community acting as contracting parties but are also binding in relevant
legal situations other than treaty relations’.168 In Mosler’s view, the ICJ adopted
the same position in the Barcelona Traction case when it developed the doctrine
of obligations erga omnes. These obligations essentially constitute Mosler’s ‘public
order’.169
While, therefore, the author seemed to distinguish ‘constitution’ from ‘public
order’ – the one made up of formal rules, the other consisting of substantive
principles170 – he nevertheless in a later part of his book spoke of ‘constitutional
principles containing substantive law’, giving the example of the invalidity of a
‘treaty depriving one of the parties of its means of continuing as a member of the
international society by suppressing its schools, universities and administration’,
and referring to Sir Hersch’s ‘overriding principles’.171 Here, the rule in question
seems to be, at the same time, a rule of jus cogens, of the public order of the inter-
national community, and of its constitution.
What is now the position of the United Nations and its Charter in this consti-
tutional framework? In outright opposition to the view held by Verdross and
Simma, Judge Mosler said that
the Charter of the United Nations is not part of general international law, though it
may in the course of time come to be generally accepted as such. … [A] comparison
between the law of the Charter and general international law binding upon all
members of the international society does not reflect the present state of interna-
tional law.172
To Mosler, the Charter not only does not have a higher rank than general inter-
national law and does not ‘incorporate’ that law. The Charter is not even a part of
general international law. It has the same status as the founding treaty of any
other international organization. Accordingly, the author held that the general
principle that a treaty cannot bind a third state without its consent also applies to
the UN Charter. ‘[T]hen the provision of Article 2, paragraph 6 [of the UN
Charter] is an unwarranted presumption, being an unlawful intervention in the

168
Mosler, International Society (supra note 158), at 19.
169
Ibid. See also International Legal Community (supra note 158), at 1254: ‘The term [interna-
tional public order] is designed to comprise the fundamental principles and rules the enforce-
ment of which is of such vital importance to the international community as a whole that any
unilateral action or any agreement which contravenes these principles can have no legal force’.
170
See also Mosler, International Society (supra note 158), at 135 (contrasting ‘constitutional prin-
ciples and rules’ with ‘fundamental principles belonging to the public order of international
society’).
171
Ibid. at 85.
172
Ibid. at 192–93. See also ibid. at 176.
 Transfer of the Constitutional Idea to International Law 45

affairs of sovereign States’.173 After these remarks it comes as a surprise when the
author concluded: ‘Nevertheless, if there is a real threat to international peace and
security in which non-members of the Organisation are involved, intervention by
the United Nations is, in my opinion, justified’.174 But why? Nothing in the
author’s foregoing explanations prepares the reader for such a result. The only
possible road of connecting the Charter to principles of a ‘public order of the
international community’ binding upon all its members was deliberately not
chosen.
In his 1984 article, Judge Mosler enhanced the importance of the Charter, now
saying that the instrument ‘and the statutes of the various organizations of States
taken as a whole amount to a considerable element of constitutional life in inter-
national society’.175
Almost twenty years later, the theme of international community was taken up
by Professor Christian Tomuschat in his 1993 lectures in the Hague. Much more
resolved than his predecessor, he expanded the concept of an international con-
stitution in its interdependence with that of international community.
Together with the rules on discharge of the executive and the judicial functions, the
rules on law-making form the constitution of any system of governance. All these
sets of prescriptions can be logically characterized as meta-rules, rules on how the
bulk of other rules are produced, how they enter into force, how they are imple-
mented and who, in case of differences over their interpretation and application, is
empowered to settle an ensuing dispute … .
These rules do not only enjoy logical precedence, as the signposts of the legal
order in which they operate. They also reflect the distribution of powers within a
given community. Every modern system of governance is operated through law-
making, administration and adjudication. The question arises whether the interna-
tional community can be called a system of governance regulated by a constitution
in the sense just delineated … .176
Following a careful analysis, the author answered that question in the affirmative:
‘[T]he international community can indeed be conceived of as a legal entity,
governed by a constitution, a term which … serves to denote the basic functions
of governance within that entity’.177 The international community is a legal entity

173
Ibid. at 192.
174
Ibid. at 193.
175
Mosler, International Legal Community (supra note 158), at 1252.
176
Christian Tomuschat, Obligations Arising for States Without or Against Their Will, 241 Recueil
des Cours 195, 216 (1993 IV) (hereinafter Obligations for States).
177
Obligations for States, at 236. See also Christian Tomuschat, International Law: Ensuring the
Survival of Mankind on the Eve of a New Century, 281 Recueil des Cours 9, 88 (1999): ‘[T]he
international community … is not a homogeneous organizational unit, but can be defined as an
46 Chapter Two

because it has a constitution, and this is so because the three basic functions of
governance are performed by the community, even if still in a rather primitive
form.178 Referring to the example of the United Kingdom, Professor Tomuschat
saw the constitution of the international community as another representation of
a ‘substantive concept of constitution that focuses on the nature of the relevant
rules governing the operation of a political system, without regard for their for-
mal source’. In both cases, the components of the constitution ‘cannot be found
in a single document, but have to be identified by the student himself who enjoys
a certain margin of discretion in characterizing certain rules and statutes as form-
ing part and parcel of the substantive constitution’.179 While, similar to the
authors considered so far, the passage quoted above described formal rules con-
cerning law-making, implementation and adjudication as the key elements of a
constitution, the author subsequently put more emphasis on substantive provi-
sions, thus joining together what Judge Mosler called ‘constitution’ and ‘public
order’, respectively:
The international community and its constitution were created by States. Over cen-
turies up to the present time, buttressed in particular by the UN Charter, the idea of

ensemble of rules, procedures and mechanisms designed to protect collective interests of hu-
mankind, based on a perception of commonly shared values. In this sense, one might also speak,
ratione materiae, of a constitution of humankind made up precisely of the normative framework
established with a view to upholding those collective interests’. (Second emphasis added.) For a
discussion of Tomuschat’s lectures of 1999 with an emphasis on his ‘vision of a global public
order’, see Armin von Bogdandy, Constitutionalism in International Law: Comment on a
Proposal from Germany, 47 Harv. Int’l L. J. 223 (2006).
178
See Tomuschat, Obligations for States, at 218, 239, and id., International Law, Part III (‘The
main functions of governance’). See also Louis Henkin, The Mythology of Sovereignty (supra
note 115), at 354–55, 358–59: ‘States have instituted a system of governance – laws and
institutions – to secure their rights to life, liberty and the pursuit of happiness. Like individuals,
“States” have sacrificed some of their autonomy to their system of governance … . [New States]
are subject to the international law they find when they join the system—to norms of a consti-
tutional character, to pacta sunt servanda, to other established non-conventional (customary)
law. … By that international social contract, the UN Charter, … States … instituted a system
of governance, notably by the Security Council for certain purposes’.
Professor Ginther referred to the ‘elementary constitution’ (Elementarverfassung) of the inter-
national community as embodiment of the rules regarding the subjects of law and the ‘original
relationship among them’, the basis and procedure of law-making, and the institutions en-
trusted with adjudication and law-enforcement. See Konrad Ginther, Befreiung und Entwicklung
im südlichen Afrika: Zu einigen Entwicklungstendenzen in der Verfassung der Völkerrechts-
gemeinschaft, in Festschrift für Ignaz Seidl-Hohenveldern 129, 130 (Karl-Heinz Böckstiegel et al.
eds., 1988).
179
Tomuschat, Obligations for States (supra note 176), at 217. See also ibid. at 218. A similarity
between the ‘constitution of the modern international legal community’ and the British consti-
tution was also seen by Verdross, Quellen (supra note 99), at 18 and 21.
 Transfer of the Constitutional Idea to International Law 47

a legal framework determining certain common values as the guiding principles States
are bound to observe and respect has gained ground and has been progressively
strengthened.180
States live, as from their birth, within a legal framework of a limited number of
basic rules which determines their basic rights and obligations with or without their
will … . One may call this framework, from which every State receives its legal enti-
tlement to be respected as a sovereign entity, the constitution of international society
or, preferably, the constitution of the international community, community being a
term suitable to indicate a closer union than between members of a society.181
From this it appears that the principal feature of the international constitution so
understood is its non-consensual character. In that respect, Professor Tomuschat
took up an argument already made by authors like Lord McNair182 and Georg
Schwarzenberger.183 Constitution is the entirety of those basic rules of the inter-
national community – whether procedural or substantive – which every state is
bound to observe irrespective of its own will. Among those basic rules, sovereign
equality of states is described as ‘the most basic axiomatic premise of the

180
Tomuschat, Obligations for States, at 236 (emphasis added). See also ibid. at 314 and Christian
Tomuschat, Die internationale Gemeinschaft, 33 Archiv des Völkerrechts 1, 7 (1995).
181
Tomuschat, Obligations for States, at 211 (emphasis added). This substantive notion of consti-
tution of the international society is reminiscent of that put forward by Professor Scelle. See
Georges Scelle, 2 Précis de droit des gens: Principes et systématique 4, 7 (1934): ‘[L]es normes
constitutives ou constitutionelles … sont reconnues à un moment donné, dans une société dé-
terminée, comme étant les bases de toutes les autres prescriptions normatives et constructives,
parce qu’essentielles à la vie même et au progrès de la société … . Toute collectivité intersociale,
y compris la communauté universelle du Droit des Gens repose, comme les collectivités mieux
intégrées et notamment les collectivités étatiques, sur un ensemble de règles constitutives es-
sentielles à leur existence, à leur durée, à leur progrès … [—] une constitution au sens large, mais
au sens juridique … ’. See also Thomas M. Franck, The Power of Legitimacy Among Nations
189–94, 195–98 (1990) (obligations of states as concomitants of community membership).
182
See A.D. McNair, Law of Treaties (1961), at 217: ‘[T]he Charter … is the nearest approach to
legislation by the whole community of States that has yet been realised. Our submission is that
those of its provisions which purport to create legal rights and duties possess a constitutive or
semi-legislative character, with the result that member States cannot “contract out of ” them or
derogate from them by treaties made between them, and that any treaty whereby they attempt-
ed to produce this effect would be void’. See also Ian Brownlie, The United Nations Charter and
the Use of Force, 1945–1985, in The Current Legal Regulation of the Use of Force 491, 495
(Antonio Cassese ed., 1986).
183
See Schwarzenberger, The Problem of International Constitutional Law (supra note 19), at 249:
‘Whether these rules [i.e., the fundamental political decisions on which a legal system is based]
are termed constitutional law, public policy or ordre public matters little. What does matter is
that these rules are public law in the strict sense, that is, they cannot be modified by inter se
agreements between individual parties’.
48 Chapter Two

international legal order’;184 it ‘is the core element of the constitutional frame-
work which no State, acting individually, can reject’.185 Rules directly deriving
from sovereign equality are the prohibition of the use of force, the principle of
non-intervention and the duty not to cause grave environmental harm in another
state.186 According to Tomuschat, ‘[t]he proclaimed attachment in the United
Nations Charter to human rights and the rule of law without any discrimination’
are additional constitutional principles,187 and so are the ‘general principles of law
recognized by civilized nations’ referred to in Article 38, paragraph 1(c) of the ICJ
Statute.188 While Mosler’s ‘public order’ rules must be observed as jus cogens when
states are entering into treaties, Tomuschat holds that the ‘ground rules of the
international community … are not all rules of jus cogens … since they can to a
large extent be modified by mutual agreement’.189
Different from Judge Mosler, Professor Tomuschat brought the UN Charter in
a direct relationship with the constitution of the international community.
However, the two are not deemed identical (as is the case according to Verdross
and Simma). The Charter is styled a ‘world order treaty’, that is, a treaty ‘intended
to concretize, and elaborate on, principles which on their part are constituent
elements of the international legal order’.190 Together with rules included in other
‘world order treaties’ – such as the two International Covenants on Human
Rights, the Genocide Convention, the Vienna Convention on Diplomatic
Relations and the Law of the Sea Convention – certain provisions of the UN
Charter are hence mirroring and concretizing ‘the constitutional premises of the
existing international legal order’,191 these premises being ‘unwritten law’.192

184
Tomuschat, Obligations for States (supra note 176), at 237.
185
Ibid. at 292–93.
186
Ibid. at 293–300.
187
Ibid. at 300. See also ibid. at 237–38, and Tomuschat, Internationale Gemeinschaft (supra note
180), at 7 (principles set out in Art. 2 of UN Charter to be accorded constitutional rank).
188
See Tomuschat, Obligations for States (supra note 176), at 240.
189
Ibid. at 306.
190
Ibid. at 248, 269. For the related notion of ‘world order conferences’, see C. Tomuschat, The
Concluding Documents of World Order Conferences, in Essays in Honour of Krzysztof
Skubiszewski 563 (Jerzy Makarczyk ed., 1997). For the relationship between the Charter, ‘the
constitution of the international community’, and customary law, see also id., International
Law as the Constitution of Mankind, in International Law on the Eve of the Twenty-first Century:
Views from the International Law Commission 37 (United Nations ed., 1997).
191
See Tomuschat, Obligations for States (supra note 176), at 299. Judge Lachs similarly stressed
the ‘constitutional’ significance of instruments other but the UN Charter. He, however, rather
thought of treaties establishing UN specialized agencies. See Manfred Lachs, Quelques réflex-
ions sur la communauté internationale, in Mélanges Michel Virally 349, 354 (1991).
192
See Tomuschat, Obligations for States (supra note 176), at 309.
 Transfer of the Constitutional Idea to International Law 49

Professor Tomuschat understands these constitutional rules as part of custom-

ary law. What, then, distinguishes them from this latter category? Clearly, they
shall be particularly firm and stable. They constitute a class of their own and have
to be kept apart from ‘contingent prescriptions’.193 The author repeatedly empha-
sized that ‘no State, acting individually, can reject’ the rules belonging to the
‘constitutional framework’ of the international community.194 While in the case
of ‘contingent’ rules the consent of the states concerned is still regarded as rele-
vant basis of obligation, constitutional prescriptions are said to relate to commu-
nity interests which may allow for some degree of majoritarianism.
Compared to Verdross and Simma, who recognized the UN Charter as the
constitution of the international community, both the New Haven School and
Professor Tomuschat de-emphasized the importance of the instrument. To the
first, the Charter is just one, albeit momentous, element in the ‘world constitu-
tive process of authoritative decision’. To the latter, it is but one of several ‘world
order treaties’ the provisions of which enjoy constitutional rank to the extent that
they relate to ‘the three basic functions of governance’, or mirror and concretize
constitutional, or axiomatic, premises of the international legal order.195 The one
decisive premise appears to be the sovereign equality of states,196 because all
the other basic rules the author refers to either derive from sovereign equality or
are expressly stated in the Charter. Since sovereign equality also appears in the
text of the Charter, it is not quite clear why it is necessary to go back to ‘premises’
existing independently of the instrument. None of them adds anything to what
is explicitly provided for in the Charter. However, a consequence of this construc-
tion is that the Charter must be in accordance with the constitutional premises,
and that the power of states to amend it is correspondingly limited. Sometimes,
the author uses the notion of constitution only with regard to the constitutional
premises or basic rules; then again, constitution describes all customary and con-
tractual rules concerning the performance of governmental functions in the inter-
national community, and concretizing the basic rules.
In his Hague lectures of 1994, Professor Jochen A. Frowein spoke of ‘the con-
stitution of the world community which we find enshrined in the United Nations
Charter’,197 and underlined that the Security Council ‘decides with binding force

193
Ibid. at 286.
194
See, e.g., ibid. at 293.
195
Consequently, the UN is not recognized as ‘a comprehensive organizational structure’ of the
international community. See ibid. at 239.
196
Cf. Tomuschat, International Law (supra note 177), at 161 et seq.
197
See Jochen A. Frowein, Reactions by Not Directly Affected States to Breaches of Public
International Law, 248 Recueil des Cours 349, 357 (1994 IV). However, the author exercised
restraint with regard to the question whether the Charter is binding on non-member states.
50 Chapter Two

comparable to a government or parliament on the basis of the constitutional

system within a State’.198 From the Council’s ability to decide against the will of
a state concerned Frowein inferred the existence of a ‘constitutional structure’
which replaced the traditional system of coordination among states. Professor
Frowein discovered what he called the ‘constitutionalization of the international
community’ also on a regional level, specifically elaborating on the European
Union and the European Convention on Human Rights. In his view, even bilat-
eral treaties may be part of the ‘overall constitutional system existing in the world
community’ if they recognize and strengthen common constitutional values or
establish ‘objective territorial régimes’ (like the Antarctic Treaty of 1959).199
Therefore, his characterization of the UN Charter as a constitution is qualified by
the notion of a ‘constitutional system’ which is even broader than Tomuschat’s
category of ‘world order treaties’.

Constructivism

Styled ‘constructivism’, Professor Nicholas Onuf developed an approach to law

which seeks to reconcile the analytical tradition and McDougal’s configurative
jurisprudence. Rules (or structure) and social reality (or process) shall both be
assigned their proper place in the universe of law, and they are seen as interde-
pendent and interactive.200 According to the author, ‘[a]n inquiry into the consti-
tution of any society usefully calls on the tradition of analytical positivism … to
offer a more specific description of the more important sites of change’.201
Professor Onuf applied H.L.A. Hart’s concept of law to what he called the
‘constitution of international society’. But whereas Professor Hart called it ‘argu-
able … that international law not only lacks the secondary rules of change and
adjudication which provide for legislature and courts, but also a unifying rule of
recognition specifying “sources” of law and providing general criteria for the
identification of its rules’,202 Professor Onuf identified rules of recognition – ‘the
rudiments of a material (i.e., written) constitution’ – in international law and,
more specifically, the UN Charter. To him, the preamble of the Charter possibly
is a ‘sign of a rule recognizing the sovereignty of many peoples’, and Article 2,

198
Ibid. at 356.
199
Ibid. at 361–62.
200
See Nicholas Onuf, The Constitution of International Society, 5 Eur. J. Int’l L. 1, 18–19 (1994).
See also id., World of Our Making (1989).
201
Onuf, Constitution, at 19.
202
Hart, Concept of Law (supra note 25), at 209.
 Transfer of the Constitutional Idea to International Law 51

paragraph 1, together with ‘its corollary’ Article 2, paragraph 7, ‘offers another

rule of recognition’. ‘If the Charter contains a material constitution, its provisions
are to be found in Chapter I (Articles 1 and 2)’.203 Assuming that Article 2, para-
graph 4 of the Charter is jus cogens (defined as ‘a peremptory rule of law which
may only be superseded by another such peremptory rule’), the author called it
‘hard to see why all of Chapter I is not as well’. ‘The parallel between claims on
behalf of jus cogens and Madison’s claim that constitutional law is unalterable by
law issued under the constitution further supports the view that Chapter I stands
apart from the rest of the Charter—and the rest of international law’.204 In addi-
tion, Article 38 of the ICJ Statute, listing the sources of law to be applied by the
Court, is understood as embodying rules of change qualifying ‘as an integral part
of international society’s material constitution’.205 However, the author called it
an open question whether the rules embodied in the mentioned article ‘are sub-
ject to change through the several processes they specify for legal change in gen-
eral’, that is, whether the constitution so determined lives up to the standard of a
‘model constitution’ which ‘includes all rules unalterable by other legal rules and
no other rules’.206
Although it seems difficult to reconcile Professor Onuf ’s views with Professor
Hart’s concept on which they are based and whose language they use,207 the
author must be given credit for shedding new light on the constitutional charac-
ter of the Charter. The ‘sovereignty of peoples’ was hardly an established concept
of international law in 1945, before the advent of the right of self-determination
of peoples and at a time when the international legal order was still indifferent
about the form of government of states. However, with its opening lines ‘We the
Peoples of the United Nations’ the Charter did claim such a sovereignty as the
ultimate source of the constituent power in the international community.
Professor Onuf also rightly drew attention to the constitutional significance of
Chapter I of the Charter, which defines the ‘purposes and principles’ of the inter-
national community, and to the inherent relationship between international con-
stitutional law and jus cogens although, in my view, the Charter cannot be regarded
as a constitution only for the reason that it includes jus cogens rules.

203
Onuf, Constitution (supra note 200), at 16.
204
Ibid. at 16–17.
205
Ibid. at 17.
206
Ibid. at 14, 17.
207
For further discussion, see Fassbender, UN Security Council Reform (supra note 29), at 60 et seq.
Chapter 3
The International Community and its Constitution
Failing to recognize itself as a society, international society has not known that is has
a constitution.208
Philip Allott

The above overview of different approaches to the idea of a constitutional law of

the international community has demonstrated a certain amount of agreement,
but also considerable differences of opinion.209 Surrounded by writers standing in
the tradition of analytical positivism, the New Haven School has remained a true
solitaire in twentieth century international legal theory. With its emphasis on
legal decision-making as part of a larger and complex societal process, and its
caveat that one should not mistake formal rules for the law in force, the School
has deeply influenced legal thought.210 It has contributed to a general awareness
of the limited significance of rules but did not succeed in winning the majority
over to its edifice of ideas. ‘Mainstream’ legal thought has remained rule-oriented,
and rule-oriented is the present debate about international constitutionalism.
What else could it be? The existence or non-existence of a constitution of the
international community with its possible consequences can only be a concern of
those who believe in the importance of norms. This, however, must not mean to
lose sight of the process which a constitution represents and of which it is a part,
or a constitution’s task of integrating the respective community.
The relative success of the ‘international community school’ (Mosler,
Tomuschat, Simma) is understandable because this school (unlike, for instance,
the New Haven approach) stays within the limits of ‘mainstream’ legal thought.
Rooted in positivism and determined not to lose touch with actual state practice,
but at the same time cautiously idealistic, it seeks to develop the international

208
Philip Allott, Eunomia: New Order for a New World 418 (1990).
209
For a review of more recent constitutional approaches in international law, see infra, Conclusion.
210
This critique of positivism by the New Haven School was later echoed by the critical legal stud-
ies movement. See Andreas L. Paulus, International Law After Postmodernism, 14 Leiden J. Int’l
L. 727, 731 et seq. (2001).
 The International Community and its Constitution 53

legal system towards greater cohesion and effectiveness. This tension causes a
certain doctrinal improvisation, and even an indecisiveness, that cannot satisfy
those looking for a clear and convincing theoretical foundation upon which the
concept of an international constitution could rest. Also, little use is made of
earlier theoretical work in sociological jurisprudence and international relations
which could help clarifying concepts like law, community, and constitution.
Taking up a criticism voiced many years ago, one can say that conclusions are still
based on common sense, opinion and intuition rather than on theoretical clarifi-
cation and empirical validation.211 Characteristically, authors belonging to that
school like to compare the constitution of the international community with that
of the United Kingdom which has grown by stages and cannot be found in a
single document.212 In consequence, the contents of a constitutional law as a part
of international law remains indistinct, and so do the legal consequences, if there
are any, of characterising a specific rule as a constitutional rule.213 In particular,
the supremacy of international constitutional law in a hierarchy of norms of
international law is only a vague concept. Indeed, for the authors of the interna-
tional community school the symbolic value of the constitutional terminology
prevails, ‘constitution’ implying that high degree of interdependence and integra-
tion of peoples and states which is regarded as a reality or, at least, a necessity.
The conversation generally suffers from terminological confusion. While today
there is an established use of the word ‘constitution’ in a domestic context, noth-
ing like this can be said for the sphere of international law and organizations.
Here, ‘constitution’ has yet to become a defined category. This is not surprising if
one remembers the long and winding road the notion has travelled. To carry a
concept that has been shaped in a particular field and historical context to another
is always difficult.214 But it is a task especially hard to accomplish in the case of a
term that is of central importance to the whole idea of the modern state and, with
it, the modern international system. Together with only a few other legal terms
and facts, the word ‘constitution’ has even emotional quality. In many countries,

211
See Helga Maria Hernes, ‘Concepts of Community in Modern Theories of International Law’ 485,
499 (1970) (unpublished Ph.D. diss., The Johns Hopkins University, Baltimore, Maryland).
212
See, e.g., Tomuschat, International Law (supra note 177), at 88.
213
See explicitly Tomuschat, ibid.: ‘[A substantive concept of constitution] constitutes no more
than an academic research tool suited to focus attention on the substantive specificities of a
particular group of legal norms. No additional legal consequences may be attached to the characteri-
zation of a rule of international law as pertaining ratione materiae to the constitution of human-
kind.’ (Emphasis added.)
214
Joseph Weiler introduced the pertinent expression of ‘problems of translation’. See Joseph H.H.
Weiler, The Constitution of Europe 270 (1999). See also Neil Walker, Postnational
Constitutionalism and the Problem of Translation, in European Constitutionalism Beyond the
State 27 (Joseph H.H. Weiler & Marlene Wind eds., 2003).
54 Chapter Three

the constitution is considered a symbol of national unity, often surpassing the

importance of the national flag and anthem.215
Those who oppose the transfer of constitutionalism to international law rightly
note that the concept is meant to describe, or to promote, a legal integration of
states and peoples which is more intense than the traditional one. He who is satis-
fied with the present state of affairs, or insists on preserving the independence of
the individual state vis-à-vis the international community as much as possible,
certainly has no reason to refer to the notion of a universal constitution.
International constitutionalism thus is a progressive movement which aims at
fostering international cooperation by consolidating the substantive legal ties
between states as well as the organizational structures built in the past. The idea
of a constitution is summoned as a symbol of (political) unity which eventually
shall also be realized on a global scale.
The authors introduced in the preceding chapter have made an effort to present
legal arguments for why one can speak of a constitution (or a constitutive process,
respectively) in contemporary international law. In Professor Tomuschat’s work,
a central feature of any constitution is particularly highlighted: Once a constitu-
tion has come into existence, it is no longer at the disposal of the individual
members of the community in question. The constitution is supreme law binding
on the entire community regardless of whether one of its members agrees with it
or not. In view of the interdependence of the world of today and the harm a sin-
gle state can inflict upon the entire world population, ‘[t]he international com-
munity cannot accept that a State goes it alone, either as from birth or at a later
stage by simply “withdrawing” and severing its ties with the rest of the world’.216
Thus, Professor Tomuschat’s concept of constitution counters the traditional doc-
trine of self-commitment as the only basis of obligation in international law. It
encompasses those norms of customary law and general principles of law which
lay the foundation of the international community as it exists today. General state
consent, it is true, set up this constitutional building, but once it came to life it
became independent of the conditions of its origins. Not only does the constitu-
tion of the international community not depend on an individual state’s consent,
but it even is the source ‘from which every State receives its legal entitlement to
be respected as a sovereign entity’.217

215
In post-World War II (West) Germany, for instance, the notion of ‘Verfassungspatriotismus’
(constitutional patriotism) was coined to express a special attachment of the people to the consti-
tution in lieu of previous, and largely discredited, nationalistic sentiments.
216
Tomuschat, Obligations for States (supra note 176), at 306.
217
See supra text accompanying note 181.
 The International Community and its Constitution 55

Here it becomes apparent how strongly constitutional thought as developed in

a national frame has influenced international legal scholarship.218 In the same way
as a national constitution – once enacted by the people – binds an individual citi-
zen and defines his or her legal status, a state is said to be subject to the interna-
tional constitution, and to derive its legal status from it, once the constitution has
come into existence as a product of the collective will of the international com-
munity. This ‘constitutionalization of international law’ is truly in line with an
‘understanding of international law in which no longer states are the ultimate
point of reference, but the international community’.219

A Challenged Notion

There are, I think, two major arguments with which one could challenge the
adoption of the constitutional idea by international law. First, one could question
whether it is worthwhile trying to make use of a notion which is already marked
by certain signs of exhaustion in its traditional domain, the national state.220
‘Constitution’ as we understand it today is a concept invented by eighteenth and
nineteenth century legal philosophy, and adopted and modified by politics, as an
answer to particular problems and aspirations arising in that period of a transition
from feudalism to liberalism. Written constitutions were a favoured means of
limiting state intrusion on private rights and liberties, and ensuring the self-
determination and political participation of citizens. Constitutional instruments
corresponded to the regulatory needs of that time. When, later, the state was not
only supposed to protect citizens against each other and against governmental
despotism but also to guarantee, as a welfare state, minimum standards of social
security, the constitution turned out to be less suited.221 Today, it appears that the
new challenges societies are facing – particularly risks arising from scientific and
technological progress and environmental degradation – can hardly be met by
constitutional legislation. Also, new actors like political parties, pressure groups,
and domestic, foreign and multinational corporations do not fit in the estab-
lished constitutional scheme.

218
With a critical undertone, Neil Walker speaks of ‘the legacy of state-centered constitutionalism’.
Walker, Constitutionalism (supra note 32), at 17 et seq.
219
See Brun-Otto Bryde, Verpflichtungen Erga Omnes aus Menschenrechten, in Aktuelle Probleme
des Menschenrechtsschutzes 165, 170 (33 Berichte der Deutschen Gesellschaft für Völkerrecht, 1994).
220
See, e.g., Eichenberger, Sinn und Bedeutung (supra note 47), at 155–56 (‘Vitalität und
Ermattungen’).
221
For this and the following, see Grimm, Die Zukunft der Verfassung, in id., Zukunft (supra note
71), at 397–437.
56 Chapter Three

Although constitutionalism is not uncontested on a domestic level, the con-

cept still has much to offer international law. Here, its primary purpose – the
organization and allocation of authority and responsibility with the aim of
establishing and preserving peace and legal order – is still of central impor-
tance. Classical goals of constitutionalism – the security and freedom of the
individual member of the community, the exclusion of an individual use of
physical force as a means of enforcing individual rights, transparency and
unambiguousness of the law, separation of powers, law-making procedures
adequate to the needs of the community – are yet to be achieved on the inter-
national plane. In addition, the notion of constitution offers a coherent expla-
nation of current developments in international law which more and more
emphasize interests of ‘the international community as a whole’ over those of
individual states.
The second objection relates to the fact that the present concept of constitu-
tion is grounded in Western legal and political thought.222 At least, discussion
has for centuries so much focused on Western texts, from Aristotle to Kelsen,
that almost no attention was paid to the possible existence of constitutional
thought in other cultures. However, the universal recognition of fundamental
human rights, including the dignity of the individual human being, which is a
cornerstone of constitutionalism, as well as an increasingly universal belief in
democracy, hint at a stock of common constitutional opinions more substantial
than usually is believed. Particular contributions non-Western cultures have
made to postwar international law – such as the promotion of social, economic
and cultural rights, the fight against colonialism and racism, and the concept of
a ‘common heritage of mankind’ – do also fit well in the program associated
with constitutionalism.
Furthermore, it is important to note that, with the achievement of independ-
ent statehood in Latin America, Africa and Asia, as well as in the former Soviet
Union, the idea of constitution was enthusiastically embraced by virtually all the
peoples in question. There exists today an ‘international family’ of constitutional
states, a universal community in which there is a free exchange and interplay of
ideas and rules.223 The drafting of a new constitution in post-Apartheid South
Africa, in which the public at large participated, demonstrated a profound belief
in a constitution as an instrument of organizing government and securing freedom

222
The concept is even criticized as an instrument of Western imperialism. See James Tully, The
Imperialism of Modern Constitutional Democracy, in The Paradox of Constitutionalism (supra
note 48), at 315.
223
See Peter Häberle, Die Entwicklungsstufe des heutigen Verfassungsstaates, in id., Rechtsver-
gleichung im Kraftfeld des Verfassungsstaates 105, 107 (1992).
 The International Community and its Constitution 57

for individuals and communities.224 ‘This constitution’, President Nelson Mandela

said in 1996, ‘is our own humble contribution to democracy and the culture of
human rights world-wide; and it is our pledge to humanity that nothing will steer
us from this cause’.225 Deputy President Thabo Mbeki emphasized the African
character of the constitution in its universal setting:
As an African, this [constitution] is an achievement of which I am proud, proud
without reservation … . Our sense of elevation at this moment also derives from the
fact that this magnificent product is the unique creation of African hands and
African minds. But it also constitutes a tribute to our loss of vanity that we could,
despite the temptation to treat ourselves as an exceptional fragment of humanity,
draw on the accumulated experience and wisdom of all humankind, to define for
ourselves what we want to be.226
In South Africa, the idea of constitution appears to have transcended its
Western origins and meaning. This is not to say that the very core of constitu-
tionalism is not defied elsewhere. In particular, Islam so far rejects a separation
of religion and state and, hence, the idea of a secular state guaranteeing impartial
government, an independent judiciary, and individual freedom of religion,
conscience and expression. But holding these beliefs, the respective Islamic
religious or political leaders can no longer identify ‘the West’ as their rival cul-
ture. In fact, basic constitutional concepts and values have come to be almost
universally accepted.
In this transformed global environment, a constitution of the international
community has a good chance of succeeding, especially if it does not impose on
nations a specific form of government. All it should strive for is the establishment
and maintenance of an international order in which basic rights and interests of
individuals and communities are acknowledged, and conflicting claims peacefully
settled. Given the diversity of our world, such order can only be based on a
framework which in the history of political ideas we have come to label
constitutional.

224
See Constitutional Assembly, Annual Reports 1995 and 1996. For the interplay of local political
aspirations and foreign precedent in the creation of the South African Constitution, see
D. M. Davis, Constitutional Borrowing: The Influence of Legal Culture and Local History in
the Reconstitution of Comparative Influence: The South African Experience, 1 Int’l J. Const’l L.
181 (2003).
225
Address by President Mandela to the Constitutional Assembly on the occasion of the adoption
of the new constitution, 8 May 1996.
226
Statement by Deputy President Mbeki on behalf of the African National Congress on the occa-
sion of the adoption by the Constitutional Assembly of ‘The Republic of South Africa
Constitution Bill 1996’, 8 May 1996.
58 Chapter Three

The Traditional Dichotomy between ‘The International’

and ‘The Constitutional’

With the notion of constitution, the proponents of international community seized

one of the central concepts of the modern state, turning a word used to defend
national independence into their own weapon. However, this is not an easy under-
taking because, since the time of the American and French Revolution, the two
concepts of state and constitution are so closely linked that one could almost say:
Wherever there is a state, there is a constitution, and wherever there is a constitu-
tion, there is a state (and no more international law).227 Since the nineteenth cen-
tury most scholars started from the premise that there is a basic dichotomy between
the forum internum of a state, where a sovereign power is entitled and able to make
law binding on all its subjects, and international relations of states as a system of
coordination between equals. The corresponding legal instruments were a constitu-
tion and statutes on the one hand, and international agreements on the other.228
The historical and ideological association of (sovereign) modern state and con-
stitution presents a serious challenge to international constitutionalism, in par-
ticular in legal cultures in which even the word has come to be used only with
reference to state constitutions.229

227
For a historical overview, see Grimm, Verfassungsbegriff (supra note 71), Walter Pauly,
Verfassung, in Handwörterbuch zur deutschen Rechtsgeschichte, Instalm. 35, at 698 (Adalbert
Erler et al. eds., 1993), and Ernst Kern, Moderner Staat und Staatsbegriff 51–58 (1949). See also
Isensee, Staat und Verfassung (supra note 82), at 4: ‘If one speaks about the constitution, one
means the constitution of a state.’
228
For a classical German voice, see Paul Laband, I Das Staatsrecht des Deutschen Reiches 33–34,
55–58 (5th ed. 1911). This concept was an important element of the distinction between a
federal state (Bundesstaat) and a confederation of states (Staatenbund) with which German con-
stitutional lawyers were preoccupied for a good part of the second half of the nineteenth cen-
tury. See, e.g., Georg Jellinek, Allgemeine Staatslehre 774 (3d ed. 1913): ‘The federal state rests
on a constitutional, not on a contractual order.’ See also the different styles, ‘Articles of
Confederation’ of 1777 versus ‘The Constitution of the United States’ of 1787.
The Maastricht decision of the German Constitutional Court of 1993 still followed this line of
thinking, see Brunner v. Federal Government (12 Oct. 1993), 89 Entscheidungen des
Bundesverfassungsgerichts 155, 186, 190 (1993); unofficial transl. in 69 Common Mkt. L. Rev.
57, 88, 91 (1994) and 33 ILM 395, 421, 424–25 (1994). See also Josef Isensee, Integrationsziel
Europastaat? In I Festschrift für Ulrich Everling 567, 580–81 (Ole Due et al. eds., 1995):
‘Different from a state, the European Union does not need a constitution … . It is a product of
treaty law and viable only due to treaties … . The EU is not able to bring forth a constitution
of the quality which is characteristic of the German Basic Law. It is based on individual sover-
eign states who have joined together in the Union but not on a single sovereign people who
would be the source of legitimacy and point of reference of a constitution.’
229
This is, for example, true for German legal terminology which contrasts Verfassung with Satzung.
Interestingly, there is no equivalent for Satzung in Anglo-American legal terminology. The term
 The International Community and its Constitution 59

However, there is no compelling reason for reserving the term ‘constitution’

for the supreme law of a (sovereign) state.230 This etatist constitutionalism, accord-
ing to which a particular group of people can live under but one constitution,
corresponds to a concept of disconnected, self-sufficient states which is not
only refuted by the real world we live in but also explicitly rejected by the
many state constitutions providing for the possibility of supranational integra-
tion. Accordingly, a constitution was more broadly defined as the fundamental
legal order of a public community (Gemeinwesen)231 or of a body politic (corps
politique).232 The Oxford Companion to Law describes a constitution as ‘[t]he
fundamental political and legal structure of government of a distinct political
community’.233 Although it is not a legal authority, it is useful to quote the defini-
tion of the word ‘constitution’ in The Oxford English Dictionary: ‘The system or
body of fundamental principles according to which a nation, state, or body poli-
tic is constituted and governed’.234 Peter Häberle’s concept of a constitution as a
public and open process235 is likewise applicable to communities other than a
state: ‘Constitution does not just amount to the constitution of a state’.236 To
Philip Allott, ‘[a] constitution is a structure-system which is shared by all socie-
ties’.237 Of the authors of the Weimar period whose works we have considered

is translated as ‘charter, constitution, memorandum and articles, articles of association’. See

Alfred Romain, 2 Dictionary of Legal and Commercial Terms 617 (1980).
230
But see Gaetano Arangio-Ruiz, The ‘Federal Analogy’ and UN Charter Interpretation: A Crucial
Issue, 8 Eur. J. Int’l L. 1 (1997) (arguing against an ‘the analogy between the UN Charter and
federal constitutions’).
231
See Hesse, Grundzüge (supra note 46), at 10. By replacing ‘state’ with ‘public community’ Hesse
wanted to emphasize that a constitution does not only regulate governmental activity but also
the life of private citizens. See also Dieter Grimm, Vertrag oder Verfassung: Die Rechtsgrundlage
der Europäischen Union im Reformprozess Maastricht II, 6 Staatswissenschaften & Staatspraxis
509, 510–17 (1995) (arguing that communities other than states can have a constitution, but
that a constitution always needs directly to derive from the will of ‘the people’).
232
See Aubert, La constitution (supra note 46), at 28 (adding, however, that ‘le corps politique
moderne par excellence’ is the state).
233
See David M. Walker, The Oxford Companion to Law 277 (1980).
234
3 The Oxford English Dictionary (2d ed.) 790 (1989).
235
See his Verfassung als öffentlicher Prozess (supra note 45), in particular chs. 4–7.
236
Häberle, Verfassungsinterpretation als öffentlicher Prozess – ein Pluralismuskonzept, in
Verfassung als öffentlicher Prozess (supra note 45), at 121, 122.
237
See Allott, Eunomia (supra note 208), at 164. See already Georg Jellinek, Allgemeine Staatslehre
(3rd ed. 1913), at 505: ‘Jeder dauernde Verband bedarf einer Ordnung, der gemäss sein Wille
gebildet und vollzogen, sein Bereich abgegrenzt, die Stellung seiner Mitglieder in ihm und zu
ihm geregelt wird. Eine derartige Ordnung heisst eine Verfassung.’ (Every lasting association
needs an order, or structure, according to which its will is created and carried out, its sphere
delimited, and the position of its members within it and their relationship to it are defined.
Such an order is called a constitution.)
60 Chapter Three

above, it is Rudolf Smend whose idea of a constitution as the legal order of a proc-
ess of integration seems particularly suitable for non-statal communities.238
The early modern state, it is true, deprived legal communities ‘below’ the level
of central government of their right of independent law-making—the law enacted
by such communities became derivative, or secondary, in the sense that its valid-
ity depended on its according with the rules established by the sovereign author-
ity in ‘the constitution’. However, already the example of a federal state like the
United States of America, Germany or the Swiss Confederation, where the indi-
vidual states retained their own constitutions, challenges this clear-cut model.
Today, there is a general awareness of the limited capacity of the nation-state to
perform its traditional tasks. Some of these tasks can effectively only be carried
out by supra-national institutions. Others are better performed by local and
regional communities. Accordingly, traditionally centralized states like Italy and
Spain have established regions and autonomous communities, respectively, with
far-reaching legislative and executive powers.239 The Treaty on European Union,
as amended by the 2007 Treaty of Lisbon, recognizes regional and local self-
government as part of the national identities of member states.240 There is no
reason to deny such communities the legal instrument of a constitution, which
has proven its worth as a means of integration and delimitation of competencies
in similar contexts.
What is true for the domestic sphere, is also true for international life. Here,
too, communities and bodies with varying degrees of autonomy must play their
role to meet the regulatory needs of the international community which ‘[n]ever
before in history have … been as acute as today’.241 It is precisely the expansion
of constitutionalism beyond the sovereign state in both directions domestic and
international which is proof of the viability, adaptability and topicality of the
constitutional idea. The fundamental rules of a system of governance about the
scope and nature of its authority, the allocation of powers to specific organs, and
the way these powers are to be exercised amount to, and can legitimately be
called, a constitution, even if the system in question is an international or supra-
national organization or the international community.

238
See Ingolf Pernice, Carl Schmitt, Rudolf Smend und die europäische Integration, 120 Archiv des
öffentlichen Rechts 100, 117–18 (1995).
239
See Arts. 114–133 of the Constitution of the Italian Republic of 1947 (as amended) and Arts.
143–158 of the Constitution of the Kingdom of Spain of 1978.
240
Art. 4(2) of the Treaty on European Union, Official Journal of the EU no. C 115 of 9 May
2008. See also Art. 5(3) of the Treaty (principle of subsidiarity), also mentioning the ‘regional
and local level’ of government.
241
Tomuschat, Obligations for States (supra note 176), at 212.
 The International Community and its Constitution 61

A gradual ‘constitutionalization’ of an originally treaty-based public order was

recognized in the case of the European Union. It has been lively debated whether
the so-called primary law of the Union (the founding treaties) can be character-
ized as a ‘constitution’, and which consequences would result from such a quali-
fication.242 The ambitious Constitutional Treaty of 2004 failed after the negative
referenda in France and the Netherlands, and governments decided to drop the
constitutional language in the amended EU Treaty of 2007. This is not the place
to review or join this discussion. Notwithstanding certain parallel developments
in the legal order of the European Union and the United Nations, it must be
borne in mind that the EU has mainly been perceived in constitutional terms
because it has come very close to a federal system of governance.243 Therefore, in
the present context the discussion is of interest only in so far as authors argue in
favor, or against, the possibility of a constitutional structure of a supranational
community which is not (and does not necessarily have to become) a state.
Having untied the bond between state and constitution, one may also apply
the term to universal international law without necessarily supporting a ‘world
state’. An international constitution so understood is not bound to put an end to
interstate relations based on international law. I agree with Hans Kelsen who
wrote in 1945 that ‘[i]t is not a priori excluded that the evolution of international
law will lead to the establishment of a world state’.244 But the recognition of a
constitution of the international community as it exists today neither promotes
nor hinders such an evolution.
However, the use of a wider, ‘extra-statal’ notion of constitution involves the
need for distinguishing between different forms and categories of constitutions
with different legal effects. If local and regional communities, ‘sovereign’ states
and supranational organizations can all have constitutions, there cannot be just
one type of constitution. The paradox is that while we seek to apply the notion to
communities other than a state, essential characteristics of that notion – and
exactly those intriguing us – developed when, and possibly because, it was closely
connected with the modern state.
If there is a plurality of constitutions, the lawyer will wish to know the relation-
ship between them. At this moment, it is only suggested that, when determining
their respective status in relation to ‘classical’ state constitutions, one must distin-
guish between constitutions of ‘domestic’ communities (like cities, regions and
member states of federations) on the one hand, and that of supranational and

242
For references, see Fassbender, UN Security Council Reform (supra note 29), at 71 n. 200.
243
See, e.g., Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 75 Am.
J. Int’l L. 1, 24 (1981) (‘Community law has progressively acquired the status of quasi-federal
law in terms of its impact on individual citizens’).
244
See Kelsen, General Theory (supra note 26), at 326.
62 Chapter Three

international communities on the other. The status of the former is determined,

in the first place, by the constitutional law of the (decentralized or federal) state
in question, while the status of the latter is established by international law.
The opposition of treaty and constitution referred to at the beginning of this sec-
tion is far from self-evident. To the contrary, in the classical works of Hobbes,
Grotius, Locke and Rousseau governmental power is established by a free association
and agreement of individuals.245 ‘Men being … by nature all free, equal, and inde-
pendent’, Locke said, ‘no one can be … subjected to the political power of another
without his own consent, which is done by agreeing with other men, to join and
unite into a community …’.246 In the political philosophy of the twentieth century,
John Rawls’ ‘Theory of Justice’ of 1971 led to a revival of contractualism. Similarly,
the idea of a societal ‘fundamental consensus’ and the need for its continuous renewal
plays a significant role in contemporary European constitutional thought.247
By the time of the American independence, the colonists’ various historical
charters had become to be seen as the evidence of a compact between the English
Crown and the American subjects. ‘This was the most prominent, although not
the only contractual image of the day—that of a mutual bargain between two
parties drawn from the legal and mercantile world, more specifically, the political
agreement between ruler and people in which protection and allegiance became
the considerations’ (Gordon Wood).248 The German constitutional movement of
the nineteenth century aspired after a constitution as a compact concluded
between the monarch and the people. Actual examples of such a ‘constitutional
treaty’ (Verfassungsvertrag)249 are the constitutions of the Kingdoms of Württemberg
and Saxony of 1819 and 1831, respectively.250 The idea of a ‘constitution by con-
sent’ had its origins in the many medieval and early modern charters of liberties
which a prince negotiated with the estates of his territory, the principal example
being the English Magna Carta Libertatum of 1215.251

245
See Jörg Fisch, Vertrag, Gesellschaftsvertrag, Herrschaftsvertrag, in 6 Geschichtliche Grundbegriffe
901, 918–32 (Otto Brunner et al. eds, 1990).
246
See John Locke, Two Treatises of Government (1690) 164 (W.S. Carpenter ed., 1989).
247
See Ingolf Pernice, Billigkeit und Härteklauseln im öffentlichen Recht 337–50 (1991).
248
See Wood, Creation (supra note 57), at 268–69 (‘The Contract of Rulers and Ruled’).
249
Other expressions are vereinbarte Verfassung (constitution by consent) and paktierte Verfassung
(constitution by compact).
250
See Kersting, Vertrag (supra note 245), at 942–44; Böckenförde, Geschichtliche Entwicklung
(supra note 76), at 36–39. For texts of the two constitutions, see Altmann, Ausgewählte Urkunden
(supra note 13), at 44 and 113, respectively.
251
The German term for such charters is Herrschaftsvertrag. See Werner Näf, Herrschaftsverträge
und Lehre vom Herrschaftsvertrag, 7 Schweizer Beiträge zur Allgemeinen Geschichte 26 (1949);
Gerhard Oestreich, Vom Herrschaftsvertrag zur Verfassungsurkunde, in Herrschaftsverträge,
Wahlkapitulationen, Fundamentalgesetze 45 (Rudolf Vierhaus ed., 1977).
 The International Community and its Constitution 63

There is another combination of treaty and constitution when several inde-

pendent states establish a federation or confederation by way of a treaty, and
simultaneously give this new body a constitution.252 German legal doctrine called
such an agreement a Bundesvertrag (‘federal treaty’). Historical examples are the
‘Articles of Confederation and perpetual Union’ between the thirteen original
United States of America of 1777, the Constitution of the United States of
1787,253 the fundamental acts of the German Confederation of 1815 and 1820,254
and the constitutions of the North German Confederation and the German
Empire of 1867 and 1871, respectively.255 Although the term was not used with
regard to intergovernmental organizations of the twentieth century, it can gener-
ally give expression to the process of creating a new international or supranational
body by way of an international treaty.256
In the case of such a ‘treaty-constitution’, it is an open question which of its
two constituent elements will be consolidated. If the first, i.e. the contractual
form of the instrument, prevails, the new corporation will have a separate legal
personality and a formal structure but ‘no measure of independence or power to
eradicate its subordination to its States’ parents and its subjection to the classical
laws governing the States’ treaty relations … The basic principles of the law of
treaties would apply to privilege the makers of the treaty at all critical junctures
in the life of a treaty—treaty-making, amendment, interpretation and organiza-
tion’.257 It is only if the second element succeeds, and the constitutional substance
triumphs over the contractual form, that the instrument will subordinate the
constituent units to the new creation and will govern each of them irrespective of

252
See Böckenförde, Geschichtliche Entwicklung (supra note 76), at 39–41. Cf. also Carl Schmitt,
Verfassungslehre 63–75 (1928).
253
See art. VII, cl. 2: ‘Done in Convention by the Unanimous Consent of the States present …’
254
For texts, see Altmann, Ausgewählte Urkunden (supra note 13), at 9 and 73, respectively.
255
For texts, see 1867 Bundesgesetzblatt 2 and 1871 Reichsgesetzblatt 63, respectively; reprinted
in 2 Dokumente zur deutschen Verfassungsgeschichte 272 and 384, respectively (Ernst Rudolf
Huber ed., 3d ed. 1986).
256
In this context, I also want to mention the ‘Treaty Establishing a Constitution for Europe’
(‘Constitutional Treaty’, Verfassungsvertrag) signed in Rome on 29 Oct. 2004, Official Journal
of the EU no. C 310 of 16 Dec. 2004. To some extent, this treaty continued the tradition of the
federal treaty described in the text. See, e.g., Miguel P. Maduro, The Importance of Being Called
a Constitution: Constitutional Authority and the Authority of Constitutionalism, 3 Int’l J.
Const’l L. 332, 353 (2005): ‘This is a treaty that establishes a European Constitution—it for-
mally adopts constitutionalism as the form of power by which the European Union is to be
governed.’ On the other hand, the notion of ‘constitutional treaty’ was a political compromise,
concealing very different ideas of the future of European integration.
257
For this and the following, see J.H.H. Weiler & Ulrich H. Haltern, The Autonomy of the
Community Legal Order – Through the Looking Glass, 37 Harv. Int’l L.J. 411, 417–19 (1996).
64 Chapter Three

their continuous individual consent.258 In spite of its contractual origins, the new
entity becomes non-consensual or ‘autonomous’.259 While it is possible, and
indeed not uncommon, to speak of a ‘constitution’ also in the first case,260 an
attribute distinctively characterizing a constitution is only present in the latter.
Whether the one or the other element will prevail, is partly determined by the
language of the instrument. It may either stress the contractual basis of the asso-
ciation261 or its constitutional quality, for instance by referring to, or installing, a
constituent power independent of the founding states.262 For the question of a
constitutional quality of the UN Charter this means that by simply describing it
as a treaty-constitution in the sense stated above we could not arrive at a clear
answer. The term does not resolve the dichotomy between an international treaty
and an (international) constitution. However, to the extent that a constitution of
the international community can be conceived, the dichotomy between ‘the
international’ and ‘the constitutional’ is overcome. What is therefore needed is a
closer look at possible constitutional features of the Charter.263

International Community and International Constitution

In constitutional theory, there are two conflicting views as to the relationship

between ‘community’ and ‘constitution’. According to the first view, only a politi-
cal community which is already in existence – and not a plurality of unrelated
individuals – can make a constitution. In other words, the political entity
(in particular, the state) comes first, and the constitution follows.264 The second
view assumes exactly the opposite when it sees a community as the result of a

258
Cf. Grimm, Integration by Constitution (supra note 42), at 207: ‘The constitution of a political
entity can … come about on the basis of a treaty prepared by its founders. This is, indeed, the
standard procedure when several states combine to create a greater political whole. In this case,
a treaty is merely the mode of constitution-making. The founding treaty is, at the same time,
the final international treaty providing the legal basis of the new political entity. With the adop-
tion of the treaty, its character as treaty is consummated. From then on, the new political entity
disposes itself of this legal basis, which thereby becomes its constitution, as is apparent in the
provisions relating to constitutional amendments.’
259
For the non-consensual character of the international constitution as understood by Professor
Tomuschat, see supra text accompanying note 181.
260
See supra text accompanying note 12.
261
See, e.g., Art. II of the Articles of Confederation, and Art. II of the 1820 Final Act of the
German Confederation (‘mutual and equal contractual rights and obligations’).
262
See, e.g., U.S. Const. pmbl. (‘We the People of the United States …’).
263
See infra, ch. 4: Constitutional Characteristics of the UN Charter.
264
See C. Schmitt, Verfassungslehre 61–62 (1928).
 The International Community and its Constitution 65

constitutional process. To Rudolf Smend, a ‘state’ as an empirical reality is

continuously effected by a process of integration partly regulated by constitu-
tional law.265 Hermann Heller explained that a political entity does not exist ‘as
such’, but as an organized body, its organization being dependent on rules. ‘In the
case of a state, normativeness and existence do not conflict but are mutually
dependent’.266 Similarly, Konrad Hesse regarded the political unity of a state as
something to be accomplished by its constitution.267 The authors advancing this
idea can also empirically point to groups of people which only established them-
selves as legal entities by making a constitution.268
If one subscribes to the first view, one must prove the existence of an interna-
tional community as a condition of a constitution applying to such a community.
If one follows the second view, it is sufficient to demonstrate an incident of inter-
national constitution-making because a community will necessarily follow from
such a constitutive act. The idea of a ‘treaty-constitution’, which was addressed
above,269 goes well with the second view—the making of such a constitution does
not presuppose the existence of the community which is to be ‘constituted’; all
that is required is the will of the states in question to establish a constitution.
To me it seems that in the international sphere there is an interaction and
reciprocal strengthening of the two concepts of community and constitution, a
dialectical relationship between the two which makes it futile to ask what has
been, or must be, first. Christian Tomuschat similarly spoke of an ‘interdepend-
ence that exists between the two concepts of international community and its
constitution’.270 He later added that ‘[w]hoever assumes the existence of a com-
munity suggests that states live under a kind of constitution which, from the very
first moment they come into being, they are bound to respect’.271 Even if one
accepts that theoretically and logically a community can be created by an act of
constitution-making, and that its legal existence depends on its being so consti-
tuted, its life will still be influenced by the measure of communal cohesion present

265
See Smend, Verfassung und Verfassungsrecht (supra note 41), at 78–85. Cf. supra, ch. 1.
266
See Heller, Staatslehre 194, 230 (1934).
267
See Hesse, Grundzüge (supra note 46), at 5, 10.
268
Consider, in particular, the process in which the British colonies in North America gained their
independence.
269
See supra text accompanying note 252.
270
See Obligations for States (supra note 176), at 219. Consider also Professor Brierly’s remark
about the relationship between law and society: ‘Law can only exist in a society, and there can
be no society without a system of law to regulate the relations of its members with one another.’
Brierly, The Law of Nations (supra note 9), at 41. For a critique of what he regards as an ‘abuse’
of the concept of community ‘by adherents to the constitutional theories’, see Arangio-Ruiz,
The ‘Federal Analogy’ (supra note 230), at 12 et seq.
271
Tomuschat, International Law (supra note 177), at 73.
66 Chapter Three

at the moment of its constitutional birth. So much was even admitted by Smend272
and Heller.273 Therefore, it is not superfluous to inquire into the present character
of the international community. I shall return to the two conflicting views when
dealing with the question of homogeneity.274
Ubi societas, ibi jus, goes a Roman maxim. Where there is a human society,
there is law. Whether this proposition is true or not will depend on how one
defines ‘society’ and ‘law’. A society (societas hominum inter ipsos) seems to be
more than just a random group of people. However, if societas is understood as a
collective of individuals who are mutually bound as members of a family or tribe,
or – by contract or promise – as citizens, the maxim becomes a truism: Wherever
there is a group of people observing legal rules in their relationships, there is law.
But be that as it may, an inversion of the saying is at least as valid: Ubi jus, ibi
societas. Where there is law – whether bilateral, multilateral, or constitutional –, a
legal community comes into being. Accordingly, one can say that the moment
that international law was brought into existence by independent communities
entering into legal relations with one another, a legal community of correspond-
ing size and character was created. However, to the authors introduced above
‘international community’ means something else and more ambitious—namely
‘an overarching system which embodies a common interest of all States and, indi-
rectly, of mankind’.275 The authors in question refer to the notions of ‘the inter-
national community’ in the Vienna Convention on the Law of Treaties (Article
53) and the ICC Statute (Article 5)276 and of ‘obligations erga omnes’ as developed

272
See Smend, Verfassung und Verfassungsrecht (supra note 41), at 78 (the state does not live by the
constitution alone; the constitution, to be effective, depends on the forces of political life and
society).
273
See Heller, Staatslehre (1934), at 165–66 (solidarity among a ‘people’ as one of the most impor-
tant preconditions for the creation and continuous existence of a state’s unity), 239–40 (the
existence of governmental power being dependent on the political solidarity of a power elite),
254–55 (a normative constitution needs to be supplemented by extra-legal elements belonging
to the ambiance, i.e. certain anthropological, geographical, ethnic, economic and social circum-
stances), and 277–79 (need for an effective pouvoir constituant).
274
See infra text accompanying note 301.
275
Tomuschat, Obligations for States (supra note 176), at 227. See also Hedley Bull, The Anarchical
Society: A Study of Order in World Politics 13 (2d ed. 1995): ‘A society of states (or international
society) exists when a group of states, conscious of certain common interests and common val-
ues, form a society in the sense that they conceive themselves to be bound by a common set of
rules in their relations with one another, and share in the working of common institutions.’
276
The provision was copied verbatim by the Vienna Convention on the Law of Treaties Between
States and International Organizations or Between International Organizations of 1986 (Art.
53); 25 ILM 543 (1986).
According to Art. 26(2(a) ) of the draft statute for an international criminal tribunal prepared
by a working group of the ILC in 1993, the tribunal should have jurisdiction in respect of
 The International Community and its Constitution 67

by the International Court of Justice in its Barcelona Traction decision.277 They

also argue that the UN General Assembly and the Security Council, as well as the
world conferences organized under the auspices of the UN, regularly address the
‘international community’.
The meaning of this notion has become ever broader. At the beginning, it
stood for the global community of states—and only of states. In that sense, the

‘crimes under general international law, that is to say, under a norm of international law ac-
cepted and recognized by the international community of States as a whole as being of such a
fundamental character that its violation gives rise to the criminal responsibility of individuals’.
See [1993] Report of the ILC, General Assembly Official Records (GAOR), Suppl. No. 10, UN
Doc. A/48/10; [1993] 2 Y.B. Int’l L. Comm’n, pt. 2, 100, at 109 (emphasis added).
In the preamble of the 1998 Rome Statute of the International Criminal Court, the States
Parties to the Statute ‘affirm[ed] that the most serious crimes of concern to the international
community as a whole must not go unpunished’. Art. 5(1) of the Statute provides that ‘[t]he
jurisdiction of the Court shall be limited to the most serious crimes of concern to the interna-
tional community as a whole’ (emphasis added).
Art. 19(2) of the draft articles on state responsibility (part 1) adopted by the ILC on first
reading on 25 July 1980 defined an ‘international crime’ (of states, not individuals] as follows:
‘An internationally wrongful act which results from the breach by a State of an international
obligation so essential for the protection of fundamental interests of the international commu-
nity that its breach is recognized as a crime by that community as a whole constitutes an interna-
tional crime’. See [1980] Report of the ILC, General Assembly Official Records, Suppl. No. 10,
UN Doc. A/35/10; [1980] 2 Y.B. Int’l L. Comm’n, pt. 2, 30, at 32 (emphasis added).
277
See 1970 ICJ Rep. 3, 33, para. 33: ‘[A]n essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection. By their very nature the former are the con-
cern of all States. In view of the importance of the rights involved, all States can be held to have
a legal interest in their protection; they are obligations erga omnes.’ By way of example, the
Court mentioned obligations deriving ‘from the outlawing of acts of aggression, and of geno-
cide’ and ‘the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination’ (ibid., para. 34).
In its judgment in the case concerning East Timor, the ICJ confirmed the concept and recog-
nized ‘the right of peoples to self-determination, as it evolved from the Charter and from United
Nations practice’, as a norm having erga omnes character. See East Timor (Port. v. Austl.),
Judgment, 1995 ICJ Rep. 90, 102, para. 29. In its 2004 advisory opinion concerning the con-
struction of a wall in the occupied Palestinian Territory, the Court reiterated that the right of
peoples to self-determination has an erga omnes character. With reference to its advisory opinion
on the Legality of the Threat or Use of Nuclear Weapons (1996 (1) ICJ Rep. 257, para. 79), the
Court added that ‘a great many rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of the human person and “elementary considerations of humanity” ’
that they are ‘to be observed by all states whether or not they have ratified the conventions that
contain them’. ‘In the Court’s view, these rules incorporate obligations which are essentially of
an erga omnes character.’ See Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, 199, paras. 156–57. For further
discussion, see infra ch. 5, Constitutional Law, Jus Cogens, and Obligations Erga Omnes.
68 Chapter Three

Vienna Convention on the Law of Treaties of 1969 used the expression ‘the
international community of States as a whole’ in its article about jus cogens
(Article 53).278 This meaning corresponds to that of the older German notion
Völkerrechtsgemeinschaft (international legal community) as the community of
states bound together by international law.279
In more recent treaties, the qualifying clause ‘of states’ was omitted. The Rome
Statute of the International Criminal Court of 1998, for instance, refers to ‘the
international community as a whole’ in its preamble and Article 5. Another
example is the International Convention for the Suppression of Terrorist
Bombings of the same year. In the preamble of the Convention, the States Parties
considered, inter alia, that the occurrence of such terrorist acts ‘is a matter of
grave concern to the international community as a whole’.280 This broader notion
of ‘international community’ includes at least subjects of international law other
than states, that is in particular intergovernmental organizations which have been
granted international legal personality.
In some texts of legal importance, non-governmental organizations are expressly
included in the notion of ‘international community’. For instance, in its
Declaration on the Occasion of the Fiftieth Anniversary of the UN, the General
Assembly
recognize[d] that our common work will be the more successful if it is supported by
all concerned actors of the international community, including non-governmental
organizations, multilateral financial institutions, regional organizations and all actors
of civil society.281
Consciously, the General Assembly spoke of ‘actors’, and not ‘members’, of the
international community. And still, the expression ‘all actors of civil society’ is
very close to that of ‘all human beings’ or ‘all peoples’. Already in 1991, Professor

278
Emphasis added. See also Georges Abi-Saab, The International Court as a World Court, in
Essays in Honour of Sir Robert Jennings (Vaughan Lowe & Malgosia Fitzmaurice eds., 1996),
at 3: ‘the international community—construed as the community of independent states consti-
tuting the “civil society” of international law’.
279
Therefore, Völkerrechtsgemeinschaft was tantamount to Staatengemeinschaft (community of
states). See, e.g., Jochen Abr. Frowein, Das Staatengemeinschaftsinteresse—Probleme bei
Formulierung und Durchsetzung, in Festschrift für Karl Doehring 219 (Kay Hailbronner et al.
eds., 1989).
280
See also Art. 48(1)(b) of the ILC Articles on Responsibility of States for Internationally Wrongful
Acts of 2001 (Annex to GA Res. 56/83 of 12 Dec. 2001): Invocation of responsibility by a state
other than an injured state if ‘[t]he obligation breached is owed to the international community
as a whole’.
281
GA Res. 50/6 of 24 Oct. 1995, para. 17. For a review of further references in legal documents,
see René-Jean Dupuy, La Communauté internationale entre le mythe et l’histoire 12–16 (1986).
 The International Community and its Constitution 69

Bedjaoui referred to the ‘[i]nternational society, understood not only, from a for-
mal point of view, as a set of subjects of law recognized at a given time by inter-
national law, but also as potentially comprising all peoples and human individuals
on earth’.282 In the meantime, the notion of ‘international community’ has indeed
increasingly been understood as signifying ‘all states and peoples’, a development
foreshadowed by the opening words of the UN Charter of 1945: ‘We the Peoples
of the United Nations’.
Professor Tomuschat concluded that the international community is ‘an
ensemble of rules, procedures and mechanisms designed to protect collective
interests of humankind, based on a perception of commonly shared values’.283
The community is ‘the guardian of fundamental values which to respect is a con-
dition of the continued existence of humankind as a society committed to peace
and certain standards of behavior.’ ‘Thus emphasizing that every state belongs to
the international community, modern international law positively rejects classical
nineteenth century views according to which the sovereign state was the measure
of all things, and international law in all its manifestations dependent on the
approval of the respective addressee’.284 This concept of an international commu-
nity based on shared values has found a perfect expression in the preamble of the
1946 Constitution of Japan:
We, the Japanese people, desire peace for all time …, and we have determined
to preserve our security and existence, trusting in the justice and faith of the
peace-loving peoples of the world. We desire to occupy an honored place in an
international society striving for the preservation of peace, and the banishment of
tyranny and slavery, oppression, and intolerance for all time from the earth. We
recognize that all peoples of the world have the right to live in peace, free from
fear and want.
We believe that no nation is responsible to itself alone, but that laws of political
morality are universal; and that obedience to such laws is incumbent upon all nations
who would sustain their own sovereignty and justify their sovereign relationship
with other nations.285
According to Professor Abi-Saab, the identity of a legal system is in the first place
that of its ideological base, or source of legitimacy, in the social environment to

282
See Mohammed Bedjaoui, General Introduction, in International Law: Achievements and
Prospects 1, 5 (M. Bedjaoui gen. ed., 1991) (emphasis added).
283
Tomuschat, International Law (supra note 177), at 88. At the heart of these shared values is the
idea of the protection of human rights and freedoms. See Bardo Fassbender, Der Schutz der
Menschenrechte als zentraler Inhalt des völkerrechtlichen Gemeinwohls, 30 Europäische
Grundrechte-Zeitschrift 1 (2003).
284
Tomuschat, Internationale Gemeinschaft (supra note 180), at 6.
285
Emphasis added.
70 Chapter Three

which it applies.286 The proposition is well-founded that today the international

community can be identified by its agreement upon such ‘sources of legitimacy’
as they appear in the Japanese Constitution.
In sum, governments and civil society have come to acknowledge the interna-
tional community as a ‘normative reality’,287 though still in a fairly tentative way.
The community is the legal entity obligations erga omnes are owed to, and it is the
legislator of jus cogens.288
The progressive development which international law experienced in this
respect since World War II can be assessed by recalling a dictum of Carl Schmitt’s
of 1928. His view was probably shared by a majority of scholars of that time: ‘The
“international legal community” (Völkerrechtsgemeinschaft) is no stable organiza-
tion, but only the reflex of the co-existence of independent political units … . If
one talks about “the” international law – which is in fact a number of rules differ-
ent from case to case and from relation to relation – establishing an “international
legal community” or a “famille des nations”, this denotes only the logical correlate
of those relations of co-existence … . This international legal community has no
constitution in a specific sense’.289 That law of co-existence is what René-Jean
Dupuy referred to as droit relationnel, as opposed to the newer droit institution-
nel.290 Similarly, Judge Lachs wrote that the network of international cooperation
between states has surpassed the stage of a ‘contractual bond’.291
Thus, the international legal community – a corollary of any international law –
has taken on a new quality. It can no longer be described as a Genossenschaft, or
association of equals not subordinated to any higher authority and exclusively
joined together by agreement. The community is more than the sum of its con-
stituent parts—it does not express a mere volonté de tous but a volonté générale.292

286
‘[I]dentité [de système juridique] est en premier lieu celle de la base idéologique ou de la source
de légitimité de l’ordre juridique … dans le milieu social où il s’applique.’ See Georges Abi-Saab,
‘Humanité’ et ‘communauté international’ dans la dialectique du droit international, in Mélanges
René-Jean Dupuy 1, 2 (1991).
287
See Tomuschat, Internationale Gemeinschaft (supra note 180), at 8.
288
Accordingly, René-Jean Dupuy described the international community as ‘la communauté nor-
mative par le jus cogens’. See Dupuy, La Communauté internationale (supra note 281), at 151.
289
Carl Schmitt, Verfassungslehre (1928), at 73, 363. See also Angelo Piero Sereni, Le crisi internazi-
onali, 45 Rivista di diritto internazionale 353, 357 (1962): ‘La comunità internazionale è una
comunità a carattere paritario. A differenza dello Stato, la comunità internazionale non costituisce,
nell’ambito del proprio ordinamento guiridico, un ente distinto e superiore ai propri consociati.’
290
See René-Jean Dupuy, La Communauté internationale (supra note 281), at 39–57, 62. The two
sets of rules are, however, said to coexist in the contemporary international order.
291
‘[L]e réseau de coopération internationale a dépassé le stade du “lien contractuel”.’ See Lachs,
Quelques réflexions (supra note 191), at 355.
292
See Michael Koch, Comment, in Allocation of Law Enforcement Authority in the International
System 178 ( Jost Delbrück ed., 1995).
 The International Community and its Constitution 71

In contrast to the old society of states, the new international community293 includes
all subjects of international law, and ultimately all human beings. Particular inter-
ests of states must yield to community interests, and a state is no longer at liberty
to leave the community. The community is united by a set of shared values, and its
high degree of cohesion is expressed by the attribute of distinct legal personality.

The International Community as a Constitutional Community

Considering, in the language of Manfred Lachs, the possibility of a lien constitu-

tionel, or constitutional bond,294 between the members of the international com-
munity, we next must determine whether at present that community is shaped or
structured in a way which allows it to have, or to bring forth, a constitution in the
above meaning, i.e., whether the international community – ‘toute imparfaite ou
lacunaire qu’elle soit’ – 295 is a constitutional community.
In 1934, Georges Scelle still answered this question in the negative, holding
that in the international sphere a constitutional order was still too underdeveloped
to contemplate drafting a constitutional charter.296 But Scelle did not reject such
a development as a matter of principle. In comparison, Carl Schmitt was of the
opinion that only a ‘political entity’ ( politische Einheit) was able to make a consti-
tution, i.e., be in possession of the pouvoir constituant.297 However, to him only an
entity characterized by a fundamental difference to other entities had a ‘political’
quality: ‘The characteristic political distinction … is the distinction between friend

293
However, this opposition of ‘society’ and ‘community’ is not self-evident. To Judge Mosler (see
supra text accompanying note 160) and Professor Tomuschat (see supra text accompanying note
181), ‘community’ was indicating a ‘closer union’ than ‘society’ (as, for instance, in the Société
des Nations as a still comparatively loose union of states). Differently, Judge Álvarez wrote that
‘[a]s a result of the increasingly closer relations between States … the old community of nations
has been transformed into a veritable international society’ (Individual Opinion, Admission of a
State to the U.N., Adv. Op., 1948 ICJ Rep. 67, 68). The latin term communitas does not seem
to denote a stronger association of individuals or groups than societas. The distinction can be
traced back to Ferdinand Tönnies’ study Gemeinschaft und Gesellschaft of 1887 (8th ed. 1935).
Here, Gemeinschaft, or community, denotes the primary and natural association of men (par-
ticularly in the house, family and local community), whereas Gesellschaft, or society, is a result
of an intentional (‘artificial’) organization of initially unrelated individuals for a specific purpose
(e.g., the bürgerliche Gesellschaft).
294
See supra note 291.
295
See Lachs, Quelques réflexions (supra note 191), at 355.
296
‘Dans les milieux internationaux, l’ordre juridique constitutif ou constitutionnel est, la plupart
du temps, trop insuffisamment évolué pour que l’on puisse songer à la rédaction d’une charte.’
See Scelle, Précis de droit (supra note 181), at 9–10.
297
See Carl Schmitt, Verfassungslehre 61–62 (1928).
72 Chapter Three

and foe’.298 For this reason, a universal political entity was impossible on principle:
‘Political unity requires the real possibility of a foe and, accordingly, a different,
co-existent, political entity. Therefore, there will always be a number of states on
earth as long as there is one state at all, and cannot be a world “state” including the
whole earth and entire mankind.’299 Schmitt sharply rejected Verdross’s concept of
an international legal community: ‘This community is not a treaty and is not
based upon a treaty. It is not an alliance, and even less an association of states.
It does not have a constitution in a specific sense, but is the reflex of political plu-
ralism (Pluriversum), i.e., a coexistence of a plurality of political entities’.300
Schmitt’s views are only quoted here as an example of the ‘legal’ arguments
with which the idea of an international community was rejected between the two
World Wars. Today, in any case, the capacity and readiness to wage war against
another group perceived as the ‘public enemy’ can no longer be a necessary pre-
condition of a ‘political existence’. A people’s statehood and constitution-
making capacity are not impaired if it denounces war of aggression as a means of
foreign policy. A people is not a standing army. Accordingly, I see no reason why
an inclusive community like the international community, which does not define
itself as a closed entity ready to fight an outsider, should not be able to have a
political life and a constitution.
Perhaps another point raised by Carl Schmitt deserves more attention. To him,
any association of political communities required, as an essential prerequisite, a
certain homogeneity of its members, that is ‘a substantial similarity which estab-
lishes a concrete and real correspondence between the member states and pre-
vents the occurrence of extreme conflict within the association’.301 This view was
based on the belief that the existence of any political entity, in particular a state,
depends on a ‘substantial similarity’ of its constituent members. Although the
quotation referred to an association of states (Bund ) as defined by Schmitt – a
category to which in his opinion the League of Nations did not belong – 302, it is
worth considering whether the international community, in order to be able to
make or maintain a constitution, must be characterized by such a homogeneity
of its members. The question is of importance even if one believes that ‘a consti-
tution makes a community’ because the success of this enterprise may depend on
a kind of cohesion and solidarity prevalent in the community so established
which cannot be secured by rules of constitutional law alone.

298
Carl Schmitt, Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien
26 (1963).
299
Ibid. at 54.
300
Ibid. at 363.
301
Carl Schmitt, Verfassungslehre 375–76 (1928).
302
Ibid. at 380, 384.
 The International Community and its Constitution 73

Schmitt’s idea of a ‘substantial similarity’ or homogeneity was rejected by

Hermann Heller. Heller traced the idea back to Rousseau, Hegel and Romanticism
and criticized it by explaining that empirically peoples and nations are not homo-
geneous entities but rather characterized by all sorts of economic, intellectual or
religious differences. ‘Relative homogeneity [of a people] can be one of the causes
of the unity of a state, but it can also be an effect of that very unity.’ But, Heller
said, what is decisive for the establishment of a state is conscious human action,
or an act of organization.303
Variety, differences and opposite interests and perspectives are the characteristic
features of life on this planet. That is why Schmitt’s ‘substantial similarity’ contrasts
sharply with the very idea of an international community. What is necessary to
maintain that community is only a certain minimum agreement on how to behave.
Differences and even contradictions, clashes of interest, disputes over the distribu-
tion of the world’s resources … do not impede a basic consensus about the necessity
commonly to salvage the globe’s life supporting capacity and to maintain a mini-
mum standard of mutual respect as outlined in the Charter of the United Nations
and the other great texts defining the realm of common agreement.304
The prohibition of the use of force, the obligation to respect fundamental human
rights and freedoms, and the duty to protect the natural environment—these are
rules based upon universal agreement, notwithstanding the fact that they are not
always observed. The demise of communism significantly strengthened the
respective international consensus.305 The international community thus is a
community based on an agreement on a limited set of fundamental rules. That is
all the ‘homogeneity’ which is needed.306

303
See Heller, Staatslehre 163–66, 230 (1934). See also ibid. at 194–95, 230, 243.
304
Tomuschat, Obligations for States (supra note 176), at 237–38. See also Henkin, Mythology of
Sovereignty (supra note 115), at 358.
305
For this reason, Professor Brierly might today come to a different conclusion than he did in
1949: ‘[I]t is still a misnomer to speak of the society of states as a genuine community. It is not
a community because its parts have not yet any strongly held common purpose of loyalty, and
so long as the present ideological rift between the East and the West continues to divide our
world into two rival power systems, we cannot look for the development of community on a
world scale.’ See J.L. Brierly, The Sovereign State Today, in id., The Basis of Obligation in
International Law and Other Papers 348, 357 (Sir Hersch Lauterpacht & C.H.M. Waldock eds.,
1958). See also id., The Law of Nations (supra note 9), at 41–45.
306
One may see this common acceptance of certain rules as an expression of a (minimum) ‘cosmo-
politan culture’. See Hedley Bull, Anarchical Society (supra note 275), at 305: ‘The future of
international society is likely to be determined … by the preservation and extension of a cosmo-
politan culture, embracing both common ideas and common values, and rooted in societies in
general as well as in their elites.’
74 Chapter Three

However, I do not want to belittle the failure of the community to react appro-
priately to violations of these basic rules. Its passivity in the face of massive war
crimes and human rights’ violations committed in Yugoslavia, Rwanda, Zaïre
(Congo) and the Sudanese province Darfur, to mention only those, is unforgot-
ten, and should not be forgotten. One cannot but agree with Professor Joseph
Weiler who, in 1993, remarked that ‘the paralysis of the UN, the powerlessness
of its peace-keeping forces and the inaction of Europe – forever canvassing, dis-
cussing, consulting, debating, communicating, and refining while the decimation
goes on – are frustrating, mind numbing, soul chilling’.307 He was referring to the
war in Bosnia which had begun in March 1992 and, especially, the persecutions
of the Muslim population by Bosnian Serbs, aided by the Yugoslav authorities,
and Bosnian Croats.308 ‘More than any other conflict in the 1990s’, another aca-
demic observer noted, ‘the war in Bosnia and the UN’s handling of it helped
shatter the optimism that characterized early debates about the likely impact of
the end of the Cold War for the UN’s peace and security role’.309 There is no
doubt that Joseph Weiler’s lamentation is equally justified in the other mentioned
cases, and beyond. However, different from the past there is at least a common
awareness both of the need for community action and the inadequacy of the
actual response.
It is concluded that the international community, as it exists today, can be
regarded as a constitutional community in the sense that it provides a sufficient
social basis for a constitutional charter—a charter which, as an element of a
broader process of integration, further strengthens the unity of the community it
governs.310

International Community, Constitution, and Organization

In principle, there cannot be a community, understood as a distinct legal entity,

in the absence of a constitution providing for its own organs. Legal personality
requires the ability to perform legal acts.311 An international community without

307
Joseph H.H. Weiler, Editorial, 4 Eur. J. Int’l L. 157 (1993).
308
See Mats Berdal, Bosnia, in The UN Security Council: From the Cold War to the 21st Century 451
(David M. Malone ed., 2004).
309
Ibid. at 463 et seq.
310
See Smend, Verfassung und Verfassungsrecht (supra note 41), at 78–88 and 189–98, respectively.
But see Arangio-Ruiz, The ‘Federal Analogy’ (supra note 230), at 13: ‘Confining our discourse
to the UN, the presence of a community seems both superfluous and implausible. The futility of
the notion of a community underlying the Charter, or created thereby, is plainly evident … .’
311
Accordingly, international law deems a functioning government one of the essential prerequi-
sites of statehood. Also, there are – with the possible exception of peoples as subjects of the right
 The International Community and its Constitution 75

institutions able to represent it would be a legal anomaly, a thing with blurred

contours always at risk to be called into question. For this reason, too, there is an
inevitable relationship between the concepts of international community and
international constitution: Not only does the constitution need a community as
its substratum in social reality. The community also needs to be constituted.
In the absence of organs clearly entitled to voice the opinions, and to apply and
enforce the general laws, of the international community, the process of the com-
munity’s ‘constitutionalization’ is not complete. Dédoublement fonctionnel as
described by Georges Scelle in the first half of the twentieth century, with the
governments of states also functioning as international organs (en qualité de gou-
vernants internationaux),312 was an ingenious concept at that time but is an insuf-
ficient and inadequate method for the international community of this day and
age, just as in modern domestic societies the enforcement of the law is not left to
the individual citizens.
But could not the existing international organizations be regarded as organs
of the international community? Judge Lachs, for instance, emphasized ‘leur
capacité de constituer ou représenter une communauté internationale’. To
him, the uninterrupted membership, and the intensity of participation of
states in the United Nations and its specialized agencies bore evidence of ‘une
communauté d’action globale’.313 Professor Frowein saw the UN General
Assembly as ‘an instrument … through which the common interest of states
can be expressed’.314
Looking for institutions capable of representing the international community,
it is appropriate to focus on the United Nations. From a constitutional point of

of self-determination – no other entities recognized as capable of possessing international rights

and duties which do not have organs of their own or are, as in the case of the individual, able to
represent themselves.
312
For G. Scelle’s idea of ‘dédoublement fonctionnel des compétences gouvernementales’, accord-
ing to which ‘chaque organisation étatique joue son rôle législatif, judiciaire, exécutif, comme
une sorte de section ou de circonscription des communautés internationales particulières ou
générales’, see Scelle, Précis de droit (supra note 181), at 10–12.
313
See Lachs, Quelques réflexions (supra note 191), at 354.
314
See Frowein, Staatengemeinschaftsinteresse (supra note 279), at 223. More far-reachingly, a
number of governments and eminent scholars have attributed a binding legal quality to certain
resolutions of the UN General Assembly. See, e.g., Separate Opinion of Judge Lauterpacht,
South-West Africa—Voting Procedure, 1955 ICJ Rep. 90, at 118–19, 122; Krzysztof Skubiszewski,
The General Assembly of the United Nations and Its Power to Influence National Action, 58
Am. Soc’y Int’l L. Proc. 153 (1964). See also Military and Paramilitary Activities in and against
Nicaragua (Nicar. v. U.S.), Merits, Judgment, 1986 ICJ Rep. 14, at 99–100, para. 188. For an
overview, see Blaine Sloan, United Nations General Assembly Resolutions in Our Changing World,
ch. II (1991).
76 Chapter Three

view, it would be little satisfying to regard an undefined number of intergovern-

mental organizations and international conferences as organs of the international
community. Such a plurality of voices (or fragmentation of representation) would
necessarily result in contradictions and ambiguities which are the exact opposite
of what any legal community must strive to realize—clarity, transparency and reli-
ability of the law. Compared to organizations established to further a cooperation
of states in narrowly defined fields like postal services, telephone communication,
agriculture, industrial development, etc., the UN has a much broader, and highly
political, mandate. According to its Charter, its purposes are, inter alia, to ‘main-
tain international peace and security’, to ‘develop friendly relations among nations’,
and to ‘achieve international cooperation in solving international problems of an
economic, social, cultural, or humanitarian character’ (Article 1). Articles 57 and
63 of the Charter provide that ‘[t]he various specialized agencies … in economic,
social, cultural, educational, health, and related fields, shall be brought into rela-
tionship with the United Nations’, and that the UN Economic and Social Council
may coordinate their activities. The UN is the only international organization
with a universal membership of states.315 In contemporary state practice, the
admission of a newly independent state to the UN has for the most part replaced
recognitions by individual states.316 Moreover, the UN is the only global institu-
tion with potentially strong executive powers (Chapter VII of the Charter) and a
judicial organ with a significant jurisdiction (the ICJ). As Antonio Cassese noted,
‘the UN ultimately acts in the interest and on behalf of the whole world commu-
nity, of which it is the legitimate representative’.317
If, therefore, under the present circumstances, the UN furnishes the interna-
tional community with effective organs, it next must be examined whether the
UN Charter can indeed be considered the constitution of this very community.
In consequence, the Charter would not only be the founding instrument of the
United Nations Organization but would also constitute – as a constitutional
instrument – 318 ‘the international community as a whole’.

315
The special case of the Republic of China (Taiwan) left aside, of the states fulfilling the generally
recognized criteria of independent statehood today only the State of the Vatican City is not a
member state of the UN. By its own free choice, the Holy See has an observer status.
316
See, e.g., Brownlie, Principles (supra note 21), at 94: ‘Admission to membership [in the UN] is
prima facie evidence of statehood, and non-recognizing members are at risk if they ignore the
basic rights of existence of another state [as] the object of their non-recognition.’
317
Antonio Cassese, International Law in a Divided World 159 (1986). See also André de Hoogh,
Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation
and Enforcement of the International Responsibility of States (1996), at 4: the UN as the ‘personi-
fied international community’.
318
For the distinction between a ‘constitution in a substantive sense’ and a constitutional instru-
ment, see supra ch. 1.
Chapter 4
The UN Charter as a Constitution
In its universal vocation, the Charter aspires to guide the conduct of all states and in
reality it has become the overriding public law of contemporary international
society.319
Ronald St. John Macdonald

Let me here turn again to the work of Professors Verdross and Simma, taking it as
a starting point for my further inquiry, not only because the two scholars’ consti-
tutional theory has focused on the UN Charter but also because their statements
have been more determined than those of the other authors considered above.
Verdross and Simma, it will be remembered, described the Charter as ‘the consti-
tution of the universal community of states’ and presented the rules of ‘general
international law’ within its framework.320 However, two different lines of reason-
ing lead to this assumption the interaction of which is not entirely clear. The first
(and older) line is Verdross’ distinction between primary and secondary norms,
the former being, in particular, rules concerning the creation of international law
and the subjects of international law which states accepted when recognizing each
other as entities of equal status. Verdross called these primary rules the ‘constitu-
tion of the non-organized community of states’—‘non-organized’ because the
community at the time lacked central organs.321 On the basis of that reasoning, it
would be difficult to regard the UN Charter as a constitution. In its quality as a
multilateral treaty, it is not a set of ‘original’ rules (originäre Normen) as defined by
Verdross, but was based on those norms (of a customary nature). Since the authors
held that general international law (allgemeines Völkerrecht) was ‘incorporated’ by
the Charter, one may say that the primary rules, being a part of that general law,
also entered the Charter. However, when ratifying the Charter, the founding states
assumed as valid the pacta sunt servanda rule as the principal primary norm.

319
R. St. J. Macdonald, Reflections on the Charter of the United Nations, in Festschrift für Karl
Josef Partsch 29, 45 (Jürgen Jekewitz et al. eds., 1989).
320
See supra text accompanying notes 109 and 111.
321
See Verdross & Simma (3d ed.) (supra note 109), at 59–60 and 62, and supra text accompany-
ing note 112.
78 Chapter Four

The second line of reasoning is based on consent as a source of obligation.

Originally, in 1945, the authors said, the UN Charter was the constitution of the
United Nations Organization as an association of states within the larger universal
legal community. Since in the meantime virtually all states have become members
of the UN (and, the authors added in 1976 and 1984, respectively, the few states
still remaining outside the Organization have recognized its main principles), the
Charter has become the ‘constitution of the universal community of states’.
This latter reasoning is not particularly bold. If the founding treaty of an inter-
national organization is called its constitution, and this organization acquires
universal membership, one can of course speak of a ‘constitution of the universal
community of states’ in the sense that all states have accepted the particular stat-
utes of an organization. But this characterization of the Charter does not ade-
quately take account of its more far-reaching claim to govern the international
community as such – including states which deliberately have chosen not to
become members of the world organization and not formally to accept the
Charter –, as it is expressed, in particular, in Article 2, paragraph 6: ‘states which
are not Members of the United Nations [shall] act in accordance with these
Principles [laid down in Article 2 of the Charter] so far as may be necessary for
the maintenance of international peace and security’. The mentioned characteri-
zation, based on a formal and ‘voluntary’ membership of states in an organization
which happens to be the United Nations, can also not explain or justify the asser-
tion that the Charter has ‘incorporated’ general international law, combining the
general rules with the new rules into one foundational body of law.
Accordingly, the position of non-member states under the Charter – a ques-
tion which has lost most of its practical relevance after the UN has acquired a
quasi-universal membership – continues to have a high theoretical, or doctrinal,
importance. Whether the problem can be convincingly solved in the framework
of a constitutional view of international law is indicative of that view’s coherence
and explanatory force.

The Charter and Non-UN Member States: Doctrinal Deficits

In fact, in the work of Verdross and Simma the designation of the Charter as a
‘constitution’ does not have consequences of any importance either for member
states or for non-member states. As far as UN members are concerned, the con-
stitutional quality of the Charter does not add to, or change in any significant
way, the obligations they have assumed when accepting the Charter as a treaty.
As regards non-member states, the authors referred to the main principles of
the Charter recognized by them. Undoubtedly states are bound by rules they
have accepted by explicit or tacit agreement. No recourse to an international
 The UN Charter as a Constitution 79

constitution is necessary to come to that conclusion. Apart from the principles

which they have recognized, non-member states are said to be bound only by
general international law. Here, the two authors strictly adhered to the pacta ter-
tiis nec nocent nec prosunt rule. Accordingly, for non-member states the Charter in
its entirety is not a (or their) ‘constitution’. For that reason, the Security Council
is said only to be able to address non-binding recommendations and proposals
to them. Correspondingly, the rights granted to non-member states (see, e.g.,
Article 35, paragraph 2) can allegedly be revoked without their agreement.322
But this is not supposed to compromise the Chapter VII based authority of the
Security Council vis-à-vis states that have violated the Charter because ‘according
to general international law every state can anyway assist another state which has
been wrongfully attacked’.323 Here, Georges Scelle’s idea of dédoublement fonc-
tionnel 324 seems to be applied in that the Security Council, when taking action
against non-member states, is seen (in addition to its role as an organ of the UN)
as an organ of a group of states, or an instrumentality which individual states,
pursuing their (customary) right of collective self-defense, choose to make use
of.325 Here Verdross and Simma returned to a separate category of ‘general inter-
national law’ on which they had already closed the books. (General international
law, they had said, has retained its binding force only to the extent that it has been
incorporated by the Charter.)326
However, the Council cannot be detached from the Charter to which it
owes its existence. The Council has only one identity—it is a principal organ
of the United Nations (Article 7, paragraph 1 of the Charter). From this it
follows that whatever the Council does must be in compliance with the
Charter. This is true even if one assumes that there still exists general interna-
tional law besides the Charter.327 As Judge Hersch Lauterpacht declared in his
separate opinion in the South-West Africa—Voting Procedure case,

322
See Verdross & Simma (3d ed.), at 177 and 484.
323
Id. at 177.
324
See supra note 312.
325
The same position was taken by Professor Tomuschat (see Obligations for States, supra note
176, at 253): ‘[N]o legal problem arises when a third State has in fact engaged in a breach of the
principle of non-use of force. Then all available remedies may be organized against it. If it has
committed an armed attack, it is clear that even under customary law the injured State, enjoying
the right of collective self-defence, may call on other States to assist it, and the common effort to
resist the aggression may be entrusted to the Security Council ’ (emphasis added). See also Graf
Vitzthum, Comment on Art. 2(6), in I The Charter of the United Nations (2d ed.) (supra note
115), at 147 (comparing the UN in case of a disruption of international peace by a non-
member state to a classic alliance of states).
326
See supra note 111 and accompanying text.
327
See infra ch. 5, Constitutional Law and ‘General International Law’.
80 Chapter Four

[action taken by the UN] must in any case lie within the orbit of its competence as
laid down in the Charter. For the organization cannot accept the fulfillment of a task
which lies outside the scope of its functions as determined by its constitution.328
One could argue that Article 51 of the Charter confirms a customary right of self-
defense, and that therefore the Council, when resorting to that prior customary
law, acts ‘in accordance with the Charter’. But such an argument clearly is at odds
with the specific delineation of the rights and responsibilities of the Council by
the Charter, and with the constitutional idea advanced by the quoted authors.
Can Article 51 of the Charter, understood as a Charter rule ‘plain and simple’
and not as an expression of customary law, be seen as a legal basis for Security
Council action against a non-member state? In Professors Verdross’ and Simma’s
cautious phrasing, the Council indeed appears to be an instrument or tool of col-
lective self-defense as approved by that provision. However, when taking meas-
ures under Chapter VII, the Council cannot rely on Article 51 because this would
deprive the target state of the protection provided by the specific rules and proce-
dures of that chapter, especially the rule that priority must be given to measures
not involving the use of armed force (Article 41).329 Individual states can invoke
the right of collective self-defense if the conditions of Article 51 are met, but the
Council as such cannot. Article 51 allows a state which has been attacked a uni-
lateral response by way of individual or collective self-defense so long as the secu-
rity mechanism of the Charter does not work—especially in the period before the
Council takes action but also if the Council remains inactive because a perma-
nent member uses its right of veto.330 But the article does not offer the Security
Council a second, and easier, road to action. Chapter VII is the only possible legal
basis for compulsory measures of the Council aiming at the maintenance or res-
toration of international peace and security331—be it straightforward measures

328
1955 ICJ Rep. 65, at 109. In the following, the Judge exemplified this principle: ‘Thus, for in-
stance, if two or more States were to confer by treaty upon the General Assembly certain func-
tions in the sphere of pacific settlement … and if the treaty provided that these functions shall
be fulfilled by a three-fourths or four-fifths majority or qualified unanimity, principle would
seem to suggest that the General Assembly cannot act in that way. It cannot override a seemingly
mandatory provision of the Charter by the device of accepting a task conferred by a treaty. It
might otherwise be possible to alter, through extraneous treaties, the character of the Organization
in an important aspect of its activity’. Exactly the same goes for the Security Council.
329
This consequence is overlooked by Stanimir A. Alexandrov, Self-Defense Against the Use of Force
in International Law, at 287 (1996).
330
See Inis L. Claude, Jr., The Management of Power in the Changing United Nations (1961),
reprinted in The United Nations and a Just World Order, at 143, 151–52 (Richard A. Falk et al.
eds., 1991).
331
See also Albrecht Randelzhofer, Comment on Art. 51, in I The Charter of the UN (supra note
115), at 788, 789 ‘[T]he UN Charter contains only two exceptions to the prohibition of force,
 The UN Charter as a Constitution 81

under Articles 41 and 42, be it an ‘authorization’ of member states to implement

Council resolutions as in the case of the liberation of Kuwait (1990),332 be it an
approval of measures taken, or to be taken, by states in the exercise of the right of
self-defense,333 or an active rendering of assistance to states taking such measures.
Outside Chapter VII, the Council ‘has no authority to wage war’,334 neither in
the name of the United Nations nor in the name of a particular group of member
states. If the legal basis of Chapter VII is not available, the Council must not take
compulsory action at all. State practice supports this view. Never in the history of
the UN has the Security Council acted against a non-member state as an agent of
a group of states.335
To sum up, of the authors advancing a constitutional reading of the UN Charter,
Judge Mosler approved of Security Council measures against a non-member state

namely Security Council enforcement actions pursuant to Chapter VII, and the right to indi-
vidual and collective self-defence laid down in Art. 51’.
332
See SC Res. 678 (29 Nov. 1990) (authorizing ‘member states co-operating with the Government
of Kuwait … to use all necessary means to uphold and implement resolution 660 (1990) and
all subsequent relevant resolutions and to restore international peace and security in the area’).
For analysis, see Danesh Sarooshi, The United Nations and the Development of Collective Security:
The Delegation by the UN Security Council of its Chapter VII Powers 167 et seq. (1999).
333
See SC Res. 661 (6 Aug. 1990), reprinted in 29 ILM 1325 (1990), referring to Chapter VII and
imposing, inter alia, a trade and financial embargo against Iraq and occupied Kuwait. The pre-
amble of the resolution affirmed ‘the inherent right of individual or collective self-defence, in
response to the armed attack by Iraq against Kuwait’. See John F. Murphy, Force and Arms, in
1 United Nations Legal Order 247, 283 (Oscar Schachter & Christopher C. Joyner eds., 1995).
See further SC Res. 1368 (12 Sep. 2001) and 1373 (28 Sep. 2001) in response to the terrorist
attacks against the United States. See Bardo Fassbender, The UN Security Council and
International Terrorism, in Enforcing International Law Norms Against Terrorism 83, 86–92
(Andrea Bianchi ed., 2004).
334
See Falk, The UN and the Rule of Law (supra note 134), at 325: ‘[T]he Security Council has no
authority to wage war, only the right to undertake military “action” and “force” as specified in
Article 42 … . This refusal to authorize the Organization to wage war is a distinguishing and
precious component of the UN framework that seeks to ensure that UN peacekeeping takes on
a different character than traditional alliances’.
335
When the Council took measures against Southern Rhodesia (a British self-governing colony
which had declared its independence in 1965), it did so on the basis of Chapter VII of the
Charter. After the declaration of independence, which the international community did not
recognize as lawful, the territory was a de facto régime and, thus, for the UN a non-member
state. Southern Rhodesia, not the United Kingdom, was the object of UN sanctions and British
use of force authorized by SC Res. 217 of 12 Nov. 1965 (1965 U.N.Y.B. 133). See J.E.S.
Fawcett, Security Council Resolutions on Rhodesia, 41 Brit. Y.B. Int’l L. 103 (1965–66); Vera
Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action
in the Question of Southern Rhodesia 71–91, 201–32 (1990); Murphy, Force and Arms (supra
note 333), at 280–82.
82 Chapter Four

without giving any reasons.336 Professors Verdross and Simma, as well as Professor
Tomuschat, would have the Council act as an agency of states on the basis of gen-
eral international law—a construct that is not convincing and, as far as Verdross
and Simma are concerned, inconsistent with their own premises. Furthermore,
the entire practice of the Council since 1977, when it began to address its Chapter
VII based decisions to ‘all States’,337 i.e., also non-member states, does not find an
explanation. In spite of being champions of the constitutional idea in interna-
tional law, the authors have shied away from taking the decisive step and qualify-
ing the UN Charter as a constitution binding upon the entire international
community.

The ‘Ideal Type’ of a Constitution as a Standard of Comparison

In order to ascertain whether a specific set of rules can be referred to as the, or as

a part of the, constitution of the international community, we need to define such
a constitution. But as I tried to demonstrate above, there is no general agreement
of what makes ‘a constitution’.338
If we want to attribute constitutional quality to the UN Charter, we could
apply the fairly broad definition of constitution developed by Rudolf Smend or
Peter Häberle. The idea is tempting, but in the end not convincing. Smend and
Häberle sought to explain the place and function of a constitution in a national
legal and societal order. Smend emphasized the role a constitution plays in the
larger process of integration of a state. But he did not say that whenever a legal
document plays a significant role in integrating a community, it is a constitution.
Häberle on his part held that the interpretation and application of a constitution
is an open and public process involving many institutions and individuals. But he
did not say that any process of that kind is a constitution. And even if we called
the Charter, on that basis, a constitution, one could hardly draw definitive nor-
mative conclusions from that finding.
At the end of my brief survey, I pointed out that contemporary written
constitutions are almost universally distinguished by a number of characteristic

336
See supra text accompanying note 174.
337
See SC Res. 418 (4 Nov. 1977): ‘The Security Council … Decides that all States shall cease forth-
with any provision to South Africa of arms and related matériel of all types’ (1977 U.N.Y.B.
161). Cf. Tomuschat, Obligations for States (supra note 176), at 254: ‘Since that time it has
become a constant practice of the Security Council to address any embargo resolutions to all
States, making it clear by the language chosen (“decides”) that it is incumbent upon non-
member States, too, to heed the measures determined by it’.
338
See supra ch. 1.
 The UN Charter as a Constitution 83

features:339 A constitution is a set of fundamental norms about the organization

and performance of governmental functions in a community, and the relation-
ship between the ‘government’ and those who are governed. It shall, in principle
for an indefinite period of time, provide a legal frame as well as guiding principles
for the political life of a community. It is binding on governmental institutions
and the members of the community alike, and is paramount (or supreme) law in
the sense that law of lower rank must conform with the constitutional rules.340
It is this normative notion of constitution on which my analysis of the UN
Charter is based. My point of reference is an ‘ideal type’ of constitution estab-
lished according to the methodology of Max Weber.
Weber’s ‘ideal type’ – ‘ideal’ not in the sense of perfect or best, but as opposed
to ‘real’341 – is built by intensifying and combining certain features of a phenom-
enon or development to form a consistent theoretical construct which ‘is neither
historical nor “true” [but] … a purely ideal, or imagined, border-notion
(Grenzbegriff ), a yardstick or standard to which reality is compared in order to
elucidate certain significant elements of its empiral substance’.342
Nevertheless, this ‘ideal type’ of constitution draws on an institution and proc-
ess developed in domestic law. Traditionally international lawyers have criticized
such an approach ‘as betraying a regrettable tendency to imitation, as ignoring
the special structure of international relations, and as threatening to thwart, by
introducing technicalities and intricacies of municipal jurisprudence, every

339
See supra text following note 71. At a later point, I explained that the political community in
question does not necessarily have to be a state; see supra ch. 3, The Traditional Dichotomy
Between ‘The International’ and ‘The Constitutional’.
340
Similarly, Thomas Franck described a ‘constitutive instrument’ of a community as distinguished
by the characteristics of (1) perpetuity, (2) indelibleness, (3) primacy, and (4) institutional au-
tochthony. See Thomas M. Franck, Is the U.N. Charter a Constitution?, in Liber Amicorum
Tono Eitel 95, 96–99 (Jochen A. Frowein et al. eds., 2003).
341
In contrast to Weber, Georg Jellinek, an eminent German constitutional lawyer of the nine-
teenth century, who seems to have inspired Weber with his method, connected a value judge-
ment with the term ‘ideal type’. To him, it was a standard of perfection or goodness. It was to
be distinguished from the so-called ‘empirical type’ which, similar to Weber’s Idealtypus, is a
combination and abstraction of certain characteristics of manifestations, but on a strictly induc-
tive basis. See Georg Jellinek, Allgemeine Staatslehre 34–42 (3d ed. 1913).
342
See Max Weber, Die ‚Objektivität’ sozialwissenschaftlicher und sozialpolitischer Erkenntnis
(1904), reprinted in Max Weber, Gesammelte Aufsätze zur Wissenschaftslehre 146, 190–94, 202
(Johannes Winckelmann ed., 7th ed. 1988). For a shorter explanation, see Max Weber,
Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie 9–11 (5th ed. [Studienausgabe]
1972, Johannes Winckelmann ed.), for a translation, see Max Weber, Selections in Translation
23–25 (W.G. Runciman ed., E. Matthews transl., 1978). For a similar method of constructing
‘analytical-synthetic generalizations’ in the form of ‘generic principles which are shared by all
the constitutions of all societies’, see Philip Allott, Eunomia (1990), at 167–70.
84 Chapter Four

attempt at a fruitful and creative scientific activity in the domain of international

law’.343 However, having examined the practice of states particularly regarding the
use of private law analogies in international law, Professor Hersch Lauterpacht
repudiated this view:
[T]here is in the constant recourse to analogy something more than a peculiarity of
one historical period. A critical examination shows that the use of private law exer-
cised, in the great majority of cases, a beneficial influence upon the development of
international law; that in other cases international law ultimately adopts solutions
suggested by private law, without paying regard to the so-called special character of
international relations; that it adopts, even now, notions of private law whenever
exigencies of international life seem to demand such a solution … .344
According to Arnold McNair, Lauterpacht’s investigation ‘vindicate[d] the prac-
tice of resort to rules and conceptions of private law for the purpose of the
development of international law’.345 Later, when sitting on the ICJ, Sir Arnold
remarked that ‘[i]nternational law has recruited and continues to recruit many
of its rules and institutions from private systems of law’.346 As the development
of international criminal law, international labour law or international anti-
trust law has demonstrated,347 this model function of domestic law is not lim-
ited to private law. Indeed, in historical perspective the idea of constitution
would only be one of many legal concepts which first took shape in a domestic
context and were later applied to international law. Treaty and custom as sources
of law, the doctrine of subjects of law, the court as a means of interpretation of
law and dispute settlement—these are all concepts that unfolded in legal set-
tings the development of which preceded that of the international community.
The ‘general principles of law recognized by civilized nations’ referred to in
Article 38 of the ICJ Statute are defined by many writers to include principles
common to all or at least ‘the principal legal systems of the world’ (see Article 9

343
H. Lauterpacht, Private Law Sources and Analogies of International Law (with Special Reference to
International Arbitration) vii (1927). For a recent examination, see M. Shahabuddeen, Municipal
Law Reasoning in International Law, in Essays in Honour of Sir Robert Jennings 90 (Vaughan
Lowe & Malgosia Fitzmaurice eds., 1996).
344
Lauterpacht, id. at viii.
345
Arnold D. McNair, Foreword, in Lauterpacht, Private Law Sources (supra note 343), at v.
346
See International Status of South-West Africa, Adv. Op., 1950 ICJ Rep. 128, 148 (McNair, J.,
sep. op.). See also South West Africa (Second Phase), Judgment, 1966 ICJ Rep. 6, at 294–95
(Tanaka, J., diss. op.).
347
See Friedmann, The Changing Structure (supra note 14), at 152 et seq.: ‘New Fields of International
Law’. In addition, Friedmann identified an international administrative law, international com-
mercial law, international economic development law, international corporation law, and inter-
national tax law.
 The UN Charter as a Constitution 85

of the Statute).348 As an institution of public law, a constitution even seems to be

better suited to be applied in public international law than concepts of domestic
private or criminal law.349 On the other hand, it must be admitted that is was
comparatively easier to introduce rules and institutions of private law, as a system
of coordination, into an order understood as a law of equals than it is to introduce
constitutional rules implying, at least in principle, a relationship of subordina-
tion. There had to be a fundamental change in our perception of the international
community – a change outlined above – 350 before one could think of drawing on
constitutional law.
There is a difference between relying on a rule of municipal law for the solution
of a specific case and looking at certain institutions common to a multitude of
national legal systems in order to explain facts and conditions in international law
which already exist as a matter of fact but are not yet adequately understood. The
latter type of effort certainly cannot be criticized as hampering a ‘fruitful and
creative scientific activity’351 in international law. Rather, one is drawing on con-
ditions and institutions of municipal law ‘for the purpose of appreciating a con-
cept or solving a problem in international law which is materially similar to a
corresponding concept or problem in municipal law’.352 By necessity, such an
analysis must reveal differences and, thus, the peculiarity of the international
constitutional order. As Philip Allott said, ‘[t]he constitution of each society is
unique, as a function of its own history, the story of its own actualizing of its own
possibilities within the possibilities of a constituted society’.353 Accordingly, the
constitutional idea in international law will become apparent as an autonomous
concept rather than an extrapolation of the law of a particular state or states.354
It will eventually emancipate itself from its origins, and it will then no longer be
necessary to go back to its historical and theoretical point of departure.

348
See Verdross & Simma (3d ed.) (supra note 109), at 382–87, and Verdross, Quellen (supra note
99), at 124–28 (with an overview of arbitral decisions). For some authors, the general principles
of Art. 38 must be found both in international law and municipal law. For others, they are the
fundamental principles of every legal system. See Alain Pellet, Comment on Art. 38, in The
Statute of the International Court of Justice: A Commentary 677, 768 n. 678 (Andreas Zimmer-
mann et al. eds., 2006).
349
For examples of a recourse to municipal constitutional law in regard to the law of international
organizations, see Friedmann, The Changing Structure (supra note 14), at 153 et seq.; Michael
Bothe & Georg Ress, The Comparative Method and Public International Law, in International
Law in Comparative Perspective 49, 53–57 (William E. Butler ed., 1980), and Bernard Dutoit,
Comparative Law and Public International Law, ibid. at 67, 79–85.
350
See supra ch. 3, International Community and International Constitution.
351
See supra text accompanying note 343.
352
See Shahabuddeen, Municipal Law Reasoning (supra note 343), at 92.
353
See Philip Allott, Eunomia (1990), at 167.
354
Cf. Thomas M. Franck, Fairness in International Law and Institutions 85 (1995).
86 Chapter Four

Constitutional Characteristics of the UN Charter

A number of features of an ‘ideal’ constitution, as conceived according to Max

Weber’s methodology, can be recognized in the Charter of the United Nations.

A ‘Constitutional Moment’
It was evident to participants in the San Francisco Conference and observers alike
that they were witnessing a true ‘constitutional moment’355 in the modern history
of international law. States responded to a ‘constitutional impulse’.356 They were
confronted with a profound transformation of the international order that had
already begun with World War I and the League of Nations357 but had intensified
enormously during World War II, and they sought to stabilize the new situation.
‘The order created after World War II … was distinctive and unprecedented.
More than the early postwar orders [of 1815 and 1919], it had – and continues
to have – constitutional characteristics’.358
The emphasis on the protection of human rights, the broad powers conceded
to the Security Council, as well as Articles 2, paragraph 6, and 103, indicate a
renunciation of the traditional concepts of sovereignty and bilateralism. Hans
Kelsen characterized the claim made by the Charter on non-member states as
‘revolutionary’, and added, ‘Whether it will be considered as a violation of the

355
I borrowed the term from Bruce Ackerman, We the People: Foundations (1991), passim. See also
Dieter Grimm, Integration by Constitution, 3 Int’l J. Const’l L. 193, 200 et seq. (2005): ‘He
[Ackerman] uses this term to refer to those rare moments that stand out from the usual course
of politics, moments in which the desire to revise the principles of social order or the conditions
of rule triumphs and is anchored in constitutional law’.
356
See Falk, The Pathways of Global Constitutionalism, supra note 145, at 21: a ‘postwar constitu-
tional impulse’. See also Crawford, Multilateral Rights and Obligations (supra note 5), at 372:
‘Like 1919, 1945 had the potential to be a constitutive moment, and those involved sought to
avoid the perceived failures of the earlier moments, each thought to contribute to the next world
war’. For a look at earlier situations of a similar nature, see Werner Näf, Die Friedensschlüsse
von 1919/20 und die Begründung des Völkerbundes, in id., Staat und Staatsgedanke, at 203,
257–58 (1935), and G. John Ikenberry, After Victory: Institutions, Strategic Restraint, and the
Rebuilding of Order after Major Wars (2001).
357
See Geoffrey Butler, Sovereignty and the League of Nations, 1 Brit. Y.B. Int’l L. 35, 39 (1920–
21): ‘There is … the view, behind which is good authority, which conceives of the League’s
formation as a great federating act of all the nations, and which sees in the Paris Conference,
which gave it birth, nothing less than a constituent assembly’. (Butler himself, however, did not
share that view.)
358
See Ikenberry, After Victory (supra note 356), at 210. For the author’s understanding of a consti-
tutional settlement, see also G. John Ikenberry, Constitutional Politics in International
Relations, in id., Liberal Order and Imperial Ambition: Essays on American Power and World
Politics 111, 112, 115–16 (2006).
 The UN Charter as a Constitution 87

old, or as the beginning of a new international law, remains to be seen’.359 The

Charter was indeed meant to mark ‘a new stage in the course of history’.360 The
new order is described in a typically constitution-like manner—in a rather short
and clear text establishing the most important goals and policies of the newly
defined community.361
These facts were rendered obscure during the long years of the Cold War when
international law and politics resembled so much classical balance of power-
exercises.362 It was only after the turn of 1989–90 that the radically new approach
of the Charter was rediscovered.
The past is always prologue to the present.363 No constitution can ignore or
deny it. By necessity, even a revolutionary constitution that fundamentally turns
against the previous legal order is taking account of the past. Often a constitution
incorporates law of a previous constitutional era. Accordingly, I have no difficulty
accepting the proposition that the Charter partly reflects constitutional principles
which were in force long before it was drafted. But the word ‘reflect’ does not
comprehensively describe what the Charter has done to these earlier rules. By
embracing or incorporating them, it has also confirmed them, i.e., given them a
place in the new order.364

359
See Hans Kelsen, The Law of the United Nations 110 (1950). See also Cassese, International Law
in a Divided World (supra note 317), at 222: ‘The system inaugurated in 1945 was revolutionary
indeed’. Hauke Brunkhorst describes the day the UN Charter was signed as the beginning of
the ‘first global revolution in and through law’ (globale Rechtsrevolution). See Brunkhorst, Die
globale Rechtsrevolution, in Freundesgabe (liber amicorum) zum 70. Geburtstag von Friedrich
Müller 9, 12–17, 19–22 (Ralph Christensen & Bodo Pieroth eds., 2008).
360
See Aegean See Continental Shelf Case (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3, 33
(Tarazi, J., sep. op.).
361
Professor Abi-Saab described as les principes constitutifs of the international community the fol-
lowing four principles, as essentially proclaimed in Art. 2 of the Charter: sovereign equality of
states, the prohibition of the use of force, the principle of non-intervention, and the legal equal-
ity of peoples and their right to self-determination. See Georges Abi-Saab, Cours général de
droit international public, 207 Recueil des Cours 9, 328–416 (1987-VII). The author defined
those principles as follows: ‘Les principes constitutifs sont les paramètres du système ou les prin-
cipes cardinaux qui le fondent. Ils sont “constitutifs”, de même que les règles constitutionnelles
en droit interne, en ce sens qu’ils déterminent la structure du système et conditionnent, à des
degrés variables, son contenu normatif. Ces principes sont pour le droit international contem-
porain essentiellement ceux figurant à l’article 2 de la Charte des Nations Unies’. Ibid. at 328.
362
See, e.g., Arangio-Ruiz, The ‘Federal Analogy’ (supra note 230), at 14 et seq.: ‘States and their
peoples seem to remain in their respective places, and in the same condition they were respec-
tively in before San Francisco … ’.
363
See William Shakespeare, The Tempest, act 2, sc. 1.
364
See infra ch. 5, Constitutional Law and ‘General International Law’.
88 Chapter Four

A Constitutional Program
A constitution ‘outlines the program that legitimizes the new order’.365 Reading
the Charter, in particular its Preamble and Chapter I, in light of this observation,
one clearly recognizes the will of its drafters firmly to establish a new world order
in which international peace and security would be safeguarded, and friendly
relations among nations be promoted. What Dieter Grimm said about the
Constitution of the United States of 1787, applies, mutatis mutandis, also to the
UN Charter: ‘[T]he Declaration of Independence and, therefore, the American
Revolution were legitimized by values which would subsequently form the basic
principles of a new order expressed in the Constitution. Only through the
Constitution as a normative text did the new order assume permanence and acquire
a legally valid form’.366 In the case of the Charter, the values legitimizing the new
order were, in essence, peace and fundamental human rights. In respect of the
latter, Sir Hersch Lauterpacht foresaw already in 1946 that ‘the Charter of the
United Nations, with its repeated recognition of “human rights and fundamental
freedoms”, has inaugurated a new and decisive departure with regard to this abid-
ing problem of law and government’.367

A ‘Charter’
The drafters of the Charter styled their work a ‘Charter’, thereby choosing a name
which denotes an especially elevated class of legal instruments.368 In modern
English law, a Charter is a deed granted only by the Crown, in the form of letters
patent under the Great Seal, of special powers, rights, privileges and immuni-
ties.369 On his accession to the throne, Henry I issued the ‘Charter of Liberties’
which recognized certain rights and placed restrictions on the power of the
Crown. The most famous instrument bearing the title of a Charter is the Magna
Carta to which King John assented in 1215. It gained ‘permanent significance as
the first great instance of … the setting down, in writing, of limitations on the
royal power’.370 The British colonies in North America began their life under

365
Isensee, Staat und Verfassung (supra note 82), at 25 (‘nennt die Legitimationsgrundlagen und
entwirft das Legitimationsprogramm für die neue Ordnung’). The legitimizing function of a
constitution is also emphasized by Max Weber, Einleitung in die Wirtschaftsethik der
Weltreligionen (1916), reprinted in Soziologie, Universalgeschichtliche Analysen, Politik 398, 432
(Johannes Winckelmann ed., 5th ed. 1973).
366
Grimm, Integration by Constitution (supra note 42), at 202 (emphasis added).
367
See L. Oppenheim, International Law: A Treatise. Vol. I.–Peace (6th ed. 1947, H. Lauterpacht
ed.), at 585.
368
See also Maduro, The Importance of Being Called a Constitution (supra note 256).
369
See David M. Walker, The Oxford Companion to Law (1980), at 208.
370
Ibid. at 796.
 The UN Charter as a Constitution 89

‘Charters’ granted by the King.371 The first enactment of the first popular assem-
bly of New York Colony was called ‘Charter of Liberties and Privileges’ (1683).
At the time Thomas Jefferson drafted the Declaration of Independence, the
Charters were seen as guarantors of constitutional freedom. In the Declaration,
the King was reproached for ‘taking away our Charters, abolishing our most valu-
able Laws, and altering fundamentally the Forms of our Governments’.372 In
Europe, the French Constitution of 1814 (revised in 1830) was styled Charte
constitutionelle. During the Second World War, in 1941, President Roosevelt and
Prime Minister Churchill chose the title ‘charter’ when declaring the fundamen-
tals of a postwar international order.373 With this ‘Atlantic Charter’, they wanted
‘to make known certain common principles … on which they base their hopes
for a better future of the world’. The Charter proclaimed, in phrases reminding
of constitutional instruments, a number of international rights and principles,
among them the rule that no territorial changes shall take place ‘that do not
accord with the freely expressed wishes of the peoples concerned’, and ‘the right
of all peoples to choose the form of government under which they will live’. The
two statesmen also declared that they hoped ‘to see established a peace which will
afford to all nations the means of dwelling in safety within their own boundaries,
and which will afford assurance that all the men in all the lands may live out their
lives in freedom from fear and want’.
Against this historical background, there is no doubt that in 1945 the term
‘charter’ was understood to be equivalent to ‘written constitution’.374 It is this
expression the founding fathers of the United Nations chose and not, for instance,
‘covenant’ which had been the name of the statute of the League of Nations.
A covenant is an agreement or promise; in English biblical translations it denotes
an engagement entered into by God with a person or people. A charter, on the
other hand, is a document setting forth constitutional rights and responsibilities.
The constitutional goals of the Charter are confirmed by its opening words (‘We
the Peoples of the United Nations’) which are modelled on the preamble of the
Constitution of the United States.

371
See, e.g., the First Charter of Virginia of 10 April 1606. For text, see Der Aufbau der Vereinigten
Staaten von Amerika 7 (Hans Hochuli & Hans Gustav Keller eds., 2d ed. 1960).
372
The Declaration of Independence (1776), para. 15.
373
For text of the Atlantic Charter, see Goodrich & Hambro, The Charter of the United Nations
(supra note 4), at 305, and Ruth B. Russell & Jeannette E. Muther, A History of the United
Nations Charter: The Role of the United States 1940–1945 (1958), at 975 (Appendix B).
374
See also I The Shorter Oxford English Dictionary on Historical Principles 294–95 (C.T. Onions
ed., 1933): ‘[a] written document delivered by the sovereign or legislature … granting privileges
or recognizing rights’.
90 Chapter Four

Constituent Power and Constitutional Form

A description of the UN Charter as the constitution of the international com-
munity presupposes the existence of a constituent power which, in a domestic
context, has been defined as ‘the power of a people to make, and therefore also to
break, the constituted authority of the state’.375 ‘Modern constitutions’, Martin
Loughlin and Neil Walker said, ‘invariably come into existence as a consequence
of some founding act. That act – an historical event – purports to establish a pol-
ity by creating a framework of government and defining the essential form of the
political bond between the people … and its governing authorities’.376 And they
added the question: ‘How, then, are we to make sense of this authorizing moment?
Who is its author—its “constituting power” or, in modern parlance, the “con-
stituent power”?’377 Accordingly, we must ask ourselves who is the constituent
power which brought into existence the UN Charter as a constitution. Is there an
equivalent of ‘the people’ in the case of the international community?
The text of the UN Charter commences with the words ‘We the Peoples of the
United Nations … have resolved to combine our efforts to accomplish these aims’.
These opening words ‘seem to us to express the democratic basis on which rests
our new Organization for peace and human welfare’, the representative of the
United States, Dean Virginia Gildersleeve, said in the first meeting of Commission
I of the San Francisco Conference.378 Obviously, this opening was modelled on
the preamble of the Constitution of the United States (‘We the People of the
United States’). The Covenant of the League of Nations of 1919, in contrast,
opened with the classical words of a treaty: ‘The High Contracting Parties …’.
The drafters of the Charter phrased the text in terms of a constitution enacted
by the peoples represented at the UN founding conference: ‘Accordingly’, the last
paragraph of the Charter’s preamble says, ‘our respective Governments, through
representatives assembled in the City of San Francisco, … have agreed to the
present Charter of the United Nations’.379 The conference of the United Nations

375
See Martin Loughlin & Neil Walker, Introduction, in The Paradox of Constitutionalism (supra
note 48), at 2.
376
Ibid. at 3.
377
Ibid.
378
See Verbatim Minutes of First Meeting of Commission I, 14 June 1945, in VI Documents of the
United Nations Conference on International Organization (supra note 6) 12, 19, and in The
United Nations Conference on International Organization: Selected Documents 529, 533
(Department of State ed., 1946). See also Goodrich & Hambro (supra note 4), at 55: ‘the
Charter reflected the resolution of peoples’.
379
See also the closing lines of the Charter: ‘In faith whereof the representatives of the Governments
of the United Nations have signed the present Charter. Done at the City of San Francisco the
twenty-sixth day of June, one thousand nine hundred and forty-five’.
 The UN Charter as a Constitution 91

convened ‘to prepare a charter for a general international organization for the
maintenance of international peace and security’380 understood itself as a consti-
tutional convention of the world, composed of representatives of the fifty partici-
pating states. This idea was again taken from the constitutional history of the
United States; it was based on the model of the Philadelphia Convention of 1787
which had drafted the US Constitution. And in the same way as Article VII of
the United States Constitution had provided for ‘the establishment of this
Constitution’ by a ‘Ratification of the Conventions of nine States’, it was stated
in Article 110 of the UN Charter that ‘[t]he present Charter shall be ratified by
the signatory States in accordance with their respective constitutional processes’.
Originally Committee I/1 and Commission I of the San Francisco Conference,
on the recommendation of the United States Delegation, had proposed a phras-
ing depicting the Charter in even clearer terms as a product of the will of the
peoples joining together as the ‘United Nations’: ‘We the Peoples of the United
Nations … through our representatives assembled at San Francisco agree to this
Charter’.381 Similarly, the Advisory Committee of Jurists had suggested the fol-
lowing wording of the preamble:
We, the Peoples of
Argentine
Australia
Belgium, etc.
…
Through our representatives assembled at San Francisco agree to the present Charter
of the United Nations.382
In the end, however, the Coordination Committee decided to say that it was the
governments through their representatives at San Francisco, rather than the peoples
of the United Nations directly, who were agreeing to the Charter and establishing

380
See invitation letter of the United States of America to the Conference, 26 April 1945, in The
United Nations Conference (supra note 378), at 3.
381
See Appendix to Report of Rapporteur of Committee I/1, 13 June 1945: ‘Approved Texts of
Preamble, Chapter I, and Chapter II’, ibid. at 499; Report of Rapporteur of Commission I to
Plenary Session, 24 June 1945, ibid. at 592, 593. This wording was also approved by the
Technical Committee; see XVIII Documents of the United Nations Conference on International
Organization (supra note 6), at 100–05.
382
Text prepared by the Advisory Committee of Jurists, 9 June 1945, XVIII Documents of the
United Nations Conference on International Organization (supra note 6), 106. A later version,
adopted by the Committee on June 19, 1945, read: ‘We, the Peoples of the United Nations, …
Through the representatives designated by our respective Governments … agree in conference
at San Francisco to the present Charter of the United Nations’; see XVII Documents of the
United Nations Conference on International Organization, at 289.
92 Chapter Four

the Organization.383 And indeed, contrary to the delegates who met at Philadelphia
in 1787 (who had been appointed by the legislatures of the thirteen United
States),384 the members of the delegations present at San Francisco in the summer
of 1945 were designated by the governments of the respective states.
Hans Kelsen criticized the opening words of the Charter as ‘legally not
correct’:
The Charter is an international treaty concluded by states represented by their gov-
ernments. These governments, not the ‘peoples’, were represented at the San Francisco
Conference. Some of these states have a written or unwritten constitution which
does not concede any essential influence on the conclusion of treaties to the people
or does not imply the political ideology of popular sovereignty. … Not the ‘peoples’,
but the governments ‘resolved’ to combine their efforts to accomplish these aims. …
[T]he governments are not organs of the peoples, but of the states …385
However, the fact that formally the UN Charter was established as an interna-
tional treaty ‘by states represented by their governments’ does not impair the
Charter’s constitutional quality to which our attention is drawn by the words ‘We
the Peoples of the United Nations’. These words, proposed and supported at the
San Francisco Conference as expression of a firm belief, and retained in spite of
major opposition, are not hollow rhetoric or ‘political fiction’386 but a manifesta-
tion of the ‘higher meaning’ of the Charter. As a matter of fact, the adoption of
the Charter as a treaty was the only legal method practically available to the
founders of the United Nations in the actual conditions of 1945. Notwithstanding
this method, the Charter was intended to safeguard peace, security and social and
economic progress for all peoples of the world in a new way and form. There is
ample evidence that the delegates at San Francisco realized that this was a true
‘constitutional moment’ in the history of the international community; they were
not simply negotiating another treaty but reorganizing the world community for
the benefit of ‘succeeding generations’.387

383
See Summary Report of Thirty-fifth Meeting of Coordination Committee, 20 June 1945; XVII
Documents of the United Nations Conference on International Organization 276 et seq., and
Russell & Muther (supra note 373), at 917.
384
See Max Farrand, The Framing of the Constitution of the United States 14 et seq. (1913).
385
See Kelsen, The Law of the U.N. (supra note 359), at 7. See also Arangio-Ruiz, The ‘Federal
Analogy’ (supra note 230), at 17: ‘… the bold lie with which the text of the UN Charter begins –
‘We the Peoples’ …’.
386
But see Rüdiger Wolfrum, ‘Preamble’, in I The Charter of the United Nations (2nd ed.) (supra
note 115), at 33, 34.
387
Consider, in particular, the fact that according to Arts. 108 and 109(2) the Charter can be
amended by a majority decision, with an amendment also being binding on member states that
voted against it and did not ratify it. See infra, ‘Eternity’ and Amendment.
 The UN Charter as a Constitution 93

Interestingly, the Charter does not provide for its being signed or ratified by
states other than the original members.388 Thus deviating from the established
rules of treaty-making, it has de-emphasized its treaty character for its future life.
In the practice of the UN, the declaration of a state that it accepts the obligations
contained in the Charter is deposited with the Secretary-General (and not with
the Government of the United States which according to Article 110, paragraph 2
is the depository for the original ratifications). Also, instruments of ratification of
Charter amendments are deposited with the Secretary-General.389
The UN Charter was established by the peoples of the United Nations through
their governments. In the words of a French proposal, ‘on behalf of the peoples of
the United Nations, the governments of the United Nations’ have agreed to the
Charter.390 As the President of Commission I of the San Francisco Conference,
Mr. Henri Rolin of Belgium, said, the Charter was ‘drafted in the name of the
peoples of the United Nations and in the name of mankind (au nom des peuples
des Nations Unies, au nom de la collectivité humaine)—which is already an indica-
tion that we are considering not so much the official states and governments as
the human collectivities of the peoples which are forming the bulk of the states’.391
Not only is it impractical to demand that a constitution of the international com-
munity be established by ‘direct’ action of the peoples of the world, for instance
in the form of a universal plebiscite. Such direct action is also not required from
the point of view of constitutional theory. Nor is it mandatory that an interna-
tional constitution be adopted by a convention composed of representatives
directly elected by their respective peoples for that particular purpose. In light of
the fact that today the members of the international community predominantly

388
Neither Art. 110(4) nor any other Charter provision calls for such a ratification. There is no rule
equivalent to Art. 110(1) (ratification of the Charter by the original signatory states). According
to Rule 134 of the Rules of Procedure of the General Assembly, ‘[a]ny State which desires to
become a Member of the United Nations shall submit an application to the Secretary-General.
Such application shall contain a declaration, made in a formal instrument, that the State in
question accepts the obligations contained in the Charter.’ This unilateral declaration is depos-
ited with the Secretary-General. After that, the only condition necessary for the UN Charter to
take effect for the state in question is a positive outcome of the admissions procedure (Art.
4(2) ). See Rule 138 of the Rules of Procedure of the GA: ‘The Secretary-General shall inform
the applicant State of the decision of the General Assembly. If the application is approved,
membership shall become effective on the date on which the General Assembly takes its deci-
sion on the application.’ Cf. Christoph Vedder, Comment on Art. 110, in II The Charter of the
United Nations (2nd ed.) (supra note 115), 1373, 1378.
389
See Wolfram Karl et al., Comment on Art. 108, in II The Charter of the United Nations (2nd ed.)
(supra note 115), 1341, 1351 et seq.
390
See Summary Report (supra note 383), at 277 and 289.
391
See Verbatim Minutes (supra note 378), at 13, 36 et seq., and 529 et seq., respectively.
94 Chapter Four

consider democracy to be the only legitimate form of government,392 popular

participation is effected by a possibility of determining the makeup of national
governments and, indirectly, those governments’ policy in a process of interna-
tional constitution-making. Participation is also effected by the rule providing for
a ratification of the results of such a process ‘in accordance with respective
[domestic] constitutional processes’.393
It follows from the foregoing that in the international community the con-
stituent power lies with the ‘Peoples of the United Nations’, who today are virtu-
ally all peoples of the world, and who normally act through their governments.
The use of that constituent power in 1945 resulted in the UN Charter as a formal
framework of rule (constitutional form).

Constitutional History
As far as we can speak of a ‘constitutional history’ of the international community
since 1945, it has been shaped, and taken place, in the United Nations and, in
particular, in its General Assembly. It is sufficient to mention a few key words to
make the reader recall the great debates which have profoundly influenced, and
changed, global life: self-determination of peoples, decolonization, human rights,
fight against racial discrimination, definition of aggression, nuclear arms, utiliza-
tion of outer space and the sea-bed (‘common heritage of mankind’), global envi-
ronmental problems, especially the use of non-renewable resources and the
protection of particularly vulnerable areas (Antarctica, tropical forests). For all these
discussions, the UN was regarded as a ‘natural forum’; and, indeed, no other body
could have claimed a similar legitimacy. Furthermore, ‘[p]ractically all the propos-
als for world constitutionalism in the postwar era have taken the UN Charter and
its institutional arrangements as a point of departure’—and not surprisingly so
‘since the UN as the premier world body is an open system in continuous interac-
tion with the flow of global megatrends, its politics instantly reflecting and effecting
momentum towards one or other of the competing approaches to world order’.394

A System of Governance
It is the typical minimum quality of a constitutional instrument that it provides
for the performance of basic functions of governance, that is to say, of making

392
See Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46
(1992), and Tomuschat, International Law (supra note 177), at 64 et seq.
393
See Art. 110(1) of the UN Charter.
394
See Samuel S. Kim, In Search of Global Constitutionalism, in The Constitutional Foundations of
World Peace (supra note 135), at 55, 57. See also Philip Allott, Eunomia (1990), at 319: the UN
‘comes closest to being the general social process of a pre-social international society’.
 The UN Charter as a Constitution 95

and applying the law and adjudicating legal claims. It has rightly been observed
that the three functions are performed by the international community, though
still in a way much less refined than in developed national systems of law.395 The
UN Charter includes express provisions relating to legislation, the administration
of law, and adjudication. But as the example of federalism shows, every newly
established body with governmental functions is first vested with very limited
powers, the enlargement of which will only gradually be achieved in a long battle
with those older authorities which are unwilling to give up some of their rights.
Article 30 of the German Grundgesetz, or Basic Law, for instance, declares that
‘[e]xcept as otherwise provided or permitted by this Basic Law the exercise of
governmental powers and the discharge of governmental functions shall be
incumbent on the Länder [States]’. There is a striking similarity of this article to
the Tenth Amendment to the U.S. Constitution, and of the two provisions to
Article 2, paragraph 7, of the UN Charter.
(a) Although the UN General Assembly was not vested with law-making powers
proper, it ‘has become a powerful motor for norm-setting according to the classi-
cal method by taking the lead in initiating reform and organizing the relevant
drafting processes’.396 Furthermore, many declarations of the General Assembly,
i.e., resolutions adopted with a certain solemnity, have led to corresponding treaty
or customary law, for instance in the field of human rights.397
An organ of the United Nations truly possessing legislative powers is the
Security Council.398 ‘[T]o protect and safeguard peace and security is the key
function of governance in any human community’.399 In the absence of peace, no
other governmental activity can properly be carried out. As Professor Tomuschat
explained, early in the history of the Council it turned out that some of the meas-
ures contemplated by the Charter in its Chapter VII had the character of genuine
legislative acts.400 This is true, in particular, of embargo decisions which are not
only addressed to the state to be sanctioned but also to its economic partners.

395
See supra text accompanying notes 160 (Mosler) and 178 (Tomuschat). For an analysis of the
exercise of these functions by and in the international community, see Abi-Saab, Cours général
(supra note 361), at 127–317, and Tomuschat, International Law (supra note 177), at 305–433.
396
Tomuschat, International Law, at 306.
397
See ibid. at 352. For a summary of arguments on the issue of the legal force of recommendations
of intergovernmental organizations, and in particular the UN General Assembly, see Paul C. Szasz,
General Law-Making Processes, in 1 United Nations Legal Order (supra note 333), at 35, 63–67.
398
Tomuschat, International Law (supra note 177), at 343. For a more critical approach, see Simon
Chesterman, The UN Security Council and the Rule of Law: Final Report and Recommendations
from the Austrian Initiative, 2004–2008 (2008), at 12 et seq. (‘The Security Council as
Legislator’).
399
Tomuschat, Obligations for States (supra note 176), at 334.
400
See Tomuschat, International Law (supra note 177), at 343.
96 Chapter Four

Writing about the Security Council in 1998, I endorsed the view that the
Council, fulfilling its duties under the Charter, is not limited to taking country-
specific or region-specific measures.401 As Professor Tomuschat had explained,
‘[i]f prevention is the philosophical concept underlying Article 39 [of the
Charter], then it must also be possible that the Security Council, in a more
abstract manner, … outlaws certain activities as being incompatible with funda-
mental interests of the international community’.402 By way of example, I men-
tioned the general regulation of certain types of armament, especially weapons of
mass destruction, and regulatory measures regarding the protection of the global
environment and the just distribution of rare natural resources.403
Only a few years later, in the wake of the terrorist attacks against the United
States of September 11, 2001, the Security Council actually began to adopt reso-
lutions of a general ‘legislative’ character—i.e., resolutions not dealing with a
particular conflict but ‘creat[ing] law for all states in a general issue area’.404 ‘The
hallmark of any international legislation is the general and abstract character of
the obligations imposed. These may well be triggered by a particular situation,
conflict, or event, but they are not restricted to it. Rather, the obligations are
phrased in neutral language, apply to an indefinite number of cases, and are not
usually limited in time’.405 Today, the constitutionality of such legislative acts of
the Council is generally accepted.406
Acting under Chapter VII of the Charter, the Council, in Resolution 1373 of
September 28, 2001, obliged all states to prevent and suppress terrorist financing
and to refrain from providing any other form of support to terrorist groups. The

401
See Fassbender, UN Security Council Reform (supra note 29), at 211.
402
Tomuschat, Obligations for States (supra note 176), at 344. See also id., L’adaptation institu-
tionnelle des Nations Unies au nouvel ordre mondial, in Les nouveaux aspects du droit interna-
tional (Rafâa Ben Achour & Slim Laghmani eds., 1994), at 159, 167 (suggesting that, in order
to promote their acceptance and execution by member states, such regulatory resolutions should
be submitted to the General Assembly for its approval), and Paul C. Szasz, General Law-Making
Processes (supra note 397), at 62.
403
See Fassbender, UN Security Council Reform (supra note 29), at 211 et seq.
404
See Ian Johnstone, Legislation and Adjudication in the UN Security Council: Bringing Down
the Deliberative Deficit, 102 Am. J. Int’l L. 275, 283 (2008). See also Munir Akram & Syed
Haider Shah, The Legislative Powers of the UN Security Council, in Towards World
Constitutionalism (supra note 20), at 431, and Axel Marschik, Legislative Powers of the Security
Council, ibid. at 457.
405
Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Int’l L. 175, 176 (2005).
406
See, e.g., the report written by Chesterman (supra note 398, at 13), reflecting the results of a
series of panel discussions organized by the Austrian UN Mission and the NYU School of Law:
‘When the Council adopts a resolution of a legislative character that is general rather than par-
ticular in effect, the legitimacy of and respect for that resolution will be enhanced by a process
that ensures transparency, participation, and accountability’.
 The UN Charter as a Constitution 97

provisions of operative paragraph 1 of the resolution are based on a treaty (the

International Convention for the Suppression of the Financing of Terrorism of
December 9, 1999)407 which, at the time the resolution was adopted, had not yet
entered into force.408 Resolution 1540 of April 28, 2004, aims at preventing
weapons of mass destruction from falling into the hands of terrorists. It demands
that all states refrain from supporting efforts by non-state actors to acquire such
weapons, and that they adopt legislative and executive measures to prevent such
acquisition.409 Both resolutions were adopted unanimously although the negotia-
tion of the latter was more contentious than that of the former, with Pakistan,
in particular, claiming that Resolution 1540 exceeded the competence of the
Council.
It is true, Resolutions 1373 and 1540 relate to the fight against terrorism as a
primary threat to international peace and security. However, ‘[n]ow that this door
has been opened’, the resolutions seem likely ‘to constitute a precedent for further
legislative activities’ of the Security Council.410 Potential subject areas can easily
be identified by considering resolutions of recent years that addressed, in non-
compulsory terms, issues like the protection of children and civilians in armed
conflicts, the role of women with respect to peace and security, and humanitarian
questions.411 I agree with Paul Szasz who wrote that ‘[i]f used prudently, this new
tool will enhance the United Nations and benefit the world community, whose
ability to create international law through traditional processes has lagged behind
the urgent requirements of the new millennium’.412
(b) The Security Council is not only the most important law-making body of the
United Nations, but also its central executive agent. It is the Council itself which,
according to the Charter, shall enforce its decisions.413 Article 43 of the UN
Charter envisages a strong executive element in the form of armed forces of mem-
ber states to be made available to the Security Council.

407
For text of the Convention, see Res. 54/109 of the UN General Assembly, annex (Dec. 9,
1999), 39 ILM 270 (2000).
408
At the time the Council acted, only four states had ratified the Convention (Botswana, Sri
Lanka, the United Kingdom, and Uzbekistan) and forty-six others had signed it. Following ad-
ditional ratifications and accessions to the Convention, it entered into force on April 10, 2002.
See Paul C. Szasz, The Security Council Starts Legislating, 96 Am. J. Int’l L. 901, 903 (2002).
409
For an analysis of the negotiation and implementation of Res. 1540, see Johnstone (supra note
404), at 290.
410
See Szasz (supra note 408), at 905.
411
Ibid. at 902 (with references).
412
Ibid. at 905.
413
See also Kelsen, The Law of the U.N. (supra note 359), at 276: ‘The machinery of the United
Nations goes far beyond the usual international type of organisation: it approaches the national
type. The Security Council has almost the character of a governmental body.’
98 Chapter Four

As a peculiar mixture of the legislative and the executive function, I want to

mention the so-called ‘targeted sanctions’ imposed by the Council. Here, not
states are designated as targets of sanctions but individuals and ‘entities’
(as defined non-uniformly under the different regimes). Usually, these sanctions
encompass a travel ban, an assets freeze and an arms embargo. The individuals
and ‘entities’ are either identified in the sanctions resolutions themselves or in
separate lists kept by committees of the Council. Of the various sanctions
regimes, the one established against individuals and entities belonging to, or
associated with, Al-Qaida and/or the Taliban (Resolution 1267 of October
15,1999 and following resolutions) has gained particular practical importance
because of the relatively high number of individuals and entities listed.414 This
sanctions regime also differs from the others in that, after the Taliban were
removed from power in Afghanistan, there is no particular link between the
targeted individuals and entities and a specific country. In other words, the
Council is reaching out to individuals and their associations or enterprises
regardless of their nationality, country of residence, or seat. However, the tar-
geted sanctions do not have a ‘direct effect’ on individuals. Like traditional sanc-
tions, they are addressed to states which must implement them and, if necessary,
enact appropriate domestic laws.
Apart from the Security Council, the executive power is little developed in the
scheme of the UN Charter. Some administrative tasks are allotted to the General
Assembly, ECOSOC, and the (now defunct) Trusteeship Council (see Articles
15–17, 60, 63, 66, 68, 85 and 87). The Secretary-General is meant to be not
much more than an officer assisting the other principal organs in the performance
of their duties. However, largely due to the Cold War stalemate in the Council
the Secretary-General could play a more important role in the prevention or reso-
lution of international conflicts. His performance of the good offices function
was called ‘the most crucial indicator of the Secretary-General’s evolving consti-
tutional role within the UN system’.415
The Charter delegates most of the execution of its law to the member states.
Article 2, paragraph 2 can be read as entailing such delegation: ‘All Members …

414
See Eric Rosand, The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/
Taliban Sanctions’, 98 Am. J. Int’l L. 745 (2004), and Johnstone (supra note 404), at 294 et seq.
For an analysis of the problem of the (lack of ) due process rights of the concerned individuals,
see Bardo Fassbender, Targeted Sanctions Imposed by the UN Security Council and Due Process
Rights: A Study Commissioned by the UN Office of Legal Affairs and Follow-up Action by the
United Nations, 3 Int’l Organizations L. Rev. 437–85 (2006).
415
See Thomas M. Franck & Georg Nolte, The Good Offices Function of the UN Secretary-
General, in United Nations, Divided World: The UN’s Roles in International Relations 143, 144
(2d ed. 1993, Adam Roberts & Benedict Kingsbury eds.).
 The UN Charter as a Constitution 99

shall fulfil in good faith the obligations assumed by them in accordance with the
present Charter’. The law of the Charter must generally be put into effect by the
member states, in a similar way in which in certain federal states (like Germany
or Switzerland) federal law is to be implemented by the individual States.416 In
the European Union, too, the implementation of acts of European legislation is
ordinarily left to the member states.417 This rather weak law-enforcement capacity
of the United Nations reflects the present state of the constitutional development
of the international community.
(c) Compared to mature domestic constitutional systems, the judicial function of
the United Nations, as provided for in Chapter XIV of the Charter, appears
underdeveloped. The International Court of Justice does not have compulsory
jurisdiction over international disputes,418 and members of the international
community other than sovereign states have no standing in the Hague at all.419
However, the Court’s advisory competence is stronger than that of its predecessor,
the Permanent Court of International Justice, which could only perform this
function when the Council or the Assembly of the League of Nations unani-
mously requested so.420 In contrast, under the majority rule of the UN General
Assembly an advisory opinion can be asked for by the Assembly against the oppo-
sition of a minority.421
Although it is ‘the principal judicial organ of the United Nations’ (Article 92
of the Charter), the ICJ has no contentious jurisdiction over disputes arising
between the principal organs of the UN, nor is it prima facie empowered to
invalidate or nullify UN legal acts, in particular resolutions adopted by the
Security Council.422 But only a minority of states possessing constitutional sys-
tems of government has established courts with such sweeping powers of judicial

416
See, e.g., Arts. 83 and 92 of the German Basic Law (Constitution), and Art. 46 of the Swiss
Federal Constitution of 1999.
417
See Art. 4(3)(subpara. 2) of the Treaty on European Union (as amended by the 2007 Treaty of
Lisbon): ‘The Member States shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institu-
tions of the Union’.
418
See Art. 36 of the ICJ Statute.
419
See Art. 93 of the Charter.
420
See Arts. 5(1) and 14 of the League of Nations Covenant.
421
See Arts. 18 and 96(1) of the Charter and Shabtai Rosenne, The Role of the International Court
of Justice in Inter-State Relations Today, 20 Revue belge de droit international 275, 276 (1987).
For an overview of important ICJ advisory opinions, see Tomuschat, International Law (supra
note 177), at 422–25.
422
For a discussion of the issue of judicial review of Security Council resolutions, see Fassbender,
UN Security Council Reform (supra note 29), at 309–15, and Tomuschat, International Law
(supra note 177), at 426–30.
100 Chapter Four

review.423 Finally, it should be mentioned that the Security Council, in spite of its
prevailing political character, also performs a semi-judicial function, in particular
when recommending, under Chapter VI of the Charter, terms of settlement of
international disputes or situations which might lead to international friction.424
The Council has further significantly strengthened the judicial function of the
UN in the field of individual criminal responsibility by establishing the
International Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda in 1993 and 1994, respectively.425
(d) It is, first and foremost, the central role of the Security Council in the UN
system of governance which does not allow us to speak of a true separation of
powers in the Organization.426 The Charter assigns, nonetheless, different (and
limited) responsibilities and powers to different organs and establishes, to some
degree, a system of checks and balances.427 An important element of that system
is the right of veto of the permanent members of the Security Council.428 Strict
separation of powers cannot be regarded as an essential feature of constitutional-
ism because many constitutional systems, especially those of the parliamentary
type, provide for some sort of exception.429 In this regard, too, the UN can be

423
For an overview of courts outside the U.S. being empowered to settle disputes between state
organs, and to judicial review, see Henry J. Abraham, The Judicial Process 270–71, 288–300 (6th
ed. 1993).
424
See, e.g., Elihu Lauterpacht, Aspects of the Administration of International Justice 37–48 (1991).
For discussion, see Fassbender, UN Security Council Reform (supra note 29), at 330–32. It seems
that it was Kelsen who first referred to the Security Council and the General Assembly as ‘quasi-
judicial organs of the United Nations’; see Kelsen, The Law of the U.N. (supra note 359), at
476–77.
425
See SC Res. 827 (25 May 1993) and 955 (8 Nov. 1994). In 2007, the Security Council estab-
lished the Special Tribunal for Lebanon to try those responsible for the assassination of Prime
Minister Hariri and for related crimes (SC Res. 1757 of 30 May 2007). See Bardo Fassbender,
Reflections on the International Legality of the Special Tribunal for Lebanon, 5 J. Int’l Criminal
Justice 1091 (2007).
426
See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), Provisional Measures, 1992 ICJ Rep.
50, 160, at 55, 165 (Weeramantry, J., diss. op.). See also Separate Opinion of Judge Lachs, ibid.
at 26, 138.
427
Philip Allott described the principle of the intrinsic limitation of power (‘all legal power is lim-
ited’) as one of the generic principles of a constitution. See Allott, Eunomia (1990), at 168,
173–74.
428
See Reisman, Constitutional Crisis (supra note 134), at 83 et seq.: ‘[A]lthough the Charter does not
incorporate a constitutional theory of checks and balances between separate branches, the recipro-
cal operation of the veto during the Cold War … created a system that was its functional equiva-
lent’. For discussion, see Fassbender, UN Security Council Reform (supra note 29), at 307 et seq.
429
For a respective survey of European constitutional systems, see Grewe & Ruiz Fabri, Droits
constitutionnels européens (supra note 34), at 366–83.
 The UN Charter as a Constitution 101

understood as an imperfect constitutional order capable of being developed into a

more advanced state in the future. As Judge Weeramantry, referring to the Security
Council and the ICJ, wrote in his dissenting opinion in the Lockerbie case,
[a]s with the great branches of government within a domestic jurisdiction such as
the executive and the judiciary, they perform their mission for the common benefit
of the greater system of which they are a part. In the United Nations system, the
sphere of each of these bodies is laid down in the Charter, as within a domestic
jurisdiction it may be laid down in a constitution.430

Definition of Membership
Generally, a constitution defines the members of the respective community, either
explicitly431 or tacitly by reference to inherited and unchallenged rules. Chapter II
of the UN Charter sets out rules regarding the acquisition, suspension and loss of
membership in the Organization. It must be admitted, however, that today these
rules are incomplete as far as membership in the international community is con-
cerned (provision is made only for a membership of ‘sovereign’ states) and, as regards
the admission and expulsion of states, out of line with the actual state of law.432
(a) States, and not peoples or individual human beings are prima facie the princi-
pal members of the community constituted by the Charter. Is that an argument
against the constitutional character of the Charter? First, one could respond that
constitutions of federal states, the constitutional character of which is undisputed,
also set out rules for states (i.e., the component units of the federation), albeit not
exclusively. But what is more important is that behind the member states of the
United Nations there are the united nations themselves—the peoples constituting
the member states or, in the very first words of the Charter, ‘the peoples of the
United Nations’.433 The former UN Secretary-General Pérez de Cuéllar spoke of
a ‘two-tier constituency’ of the United Nations. The Secretary-General, he
remarked, is elected by the governments of the UN member states but is also
responsible to ‘the peoples for whom those governments act—all the peoples of
the world who together form a single constituency for peace’.434

430
Lockerbie (Weeramantry, J., dissenting), 1992 ICJ Rep. at 165.
431
See, e.g., Amendment XIV, sec. 1, cl. 1, to the U.S. Constitution, adopted by Congress on 21
July 1868 (declaring ‘[a]ll persons born or naturalized in the United States, and subject to the
jurisdiction thereof, [to be] citizens of the United States and of the State wherein they reside’),
and Art. 116 of the German Basic Law (Constitution) of 1949 (defining ‘German[s] within the
meaning of this Basic Law’).
432
See infra ch. 6, Admission and Expulsion of UN Member States.
433
See supra, Constituent Power and Constitutional Form.
434
See Javier Pérez de Cuéllar, The Role of the UN Secretary-General, in United Nations, Divided
World (supra note 415), at 125, 140–41. See also id., Foreword, 1983 U.N.Y.B.: ‘Our hope is
102 Chapter Four

These ‘United Nations’ are not absent from the provisions of the Charter.
Already the Preamble proclaims ‘the equal rights … of nations large and small’ and
the goal of ‘the economic and social advancement of all peoples’.435 According to
Article 1, paragraph 1, it is one of the purposes of the UN ‘[t]o develop friendly
relations among nations based on respect for the principle of equal rights and self-
determination of peoples’, and according to paragraph 4 of the same article the
UN shall be ‘a centre for harmonizing the actions of nations in the attainment of
these [aforementioned] ends’.436 Article 14 provides that the General Assembly
may recommend measures for the peaceful adjustment of any situation which it
deems likely ‘to impair the general welfare or friendly relations among nations’.437
And behind ‘the peoples of the United Nations’ there are of course the indi-
vidual human beings constituting the peoples. It is an essential part of the core
program of the Charter ‘to reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women’.438
The UN Charter laid the groundwork for the protection of human rights and
freedoms in postwar international law.439 In the very first words of the Universal
Declaration of Human Rights of 1948, which completed the Charter with a bill
of human rights,440 the General Assembly proclaimed that ‘recognition of the
inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world’. It is
not by chance that the General Assembly described the Universal Declaration as
a ‘common standard of achievement for all peoples and all nations’ (not states).
All this is ample evidence of the fact that the Charter has left behind the tradi-
tional state-centric view of international law, by gearing its rules to the ultimate
goal of the general welfare of peoples and individual human beings. In the Friendly
Relations Declaration, which interprets the principles of the Charter, the General
Assembly explicitly referred to ‘the rights of peoples under the Charter’.441

anchored in that constituency of peace which cuts across national frontiers and the divisions of
race, culture or ideology. The United Nations represents that constituency’.
435
Emphasis added.
436
Emphasis added.
437
Emphasis added. See also Art. 55 of the Charter.
438
Preamble, para. 2. See also Arts. 1(3), 13(1)(b), 55(c) and 76(c).
439
For that reason, I do not agree with the criticism that the Charter is lacking constitutional quality
because it ‘focus[es] on state sovereignty without effective protection of human rights’. But see
Ernst-Ulrich Petersmann, Constitutionalism, International Law and ‘We the Peoples of the United
Nations’, in Festschrift für Helmut Steinberger 291, 303 (Hans Joachim Cremer et al. eds., 2002).
440
See infra ch. 5, Constitutional ‘By-Laws’ of the International Community.
441
See Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations (Annex to GA
Res. 2625 (XXV) of 24 Oct. 1970), General Part, para. 2, subpara. 2.
 The UN Charter as a Constitution 103

Ultimately, the Charter is meant to be the constitution of ‘all members of the

human family’.
(b) To deal with another possible objection to the constitutional character of the
Charter in the context of the issue of membership, can ‘sovereign’ states be bound
by a constitutional instrument? Is sovereignty an obstacle to membership in a
constitutional community? I believe it is not. States entering a constitutional
framework freely relinquish a part of their sovereign rights. Once a constitution
binding on states has been established, it redefines sovereignty as a collective
name for those powers retained by the states, or, to be more precise, attributed to
them by the new constitutional order. There is no inherent contradiction between
the notions of constitution and sovereignty. It is simply a different kind of legal
status which ‘sovereign’ states enjoy under the constitution of the international
community, compared to other members of that community.

Hierarchy of Norms
Another characteristic feature of a constitution is that it establishes a hierarchy of
norms. After the constitution has entered into force, rules claiming to be law of
the respective society must be in conformity with the standards determined by
the constitution.442 For this reason, it makes litte sense to call the entire legal
order of a community its ‘constitution’. Constitution must be a distinctive part of
the system of norms, or else we can do without the word.
Following Article 20 of the Covenant of the League of Nations,443 which led
Sir Hersch Lauterpacht to attribute the character of ‘higher law’ to that instru-
ment,444 the Charter clearly gives expression to such a hierarchical model: ‘In the

442
Cf. H.L.A. Hart’s ‘rule of recognition’ specifying ‘sources’ of law and providing general criteria
for the identification of its rules: ‘In a modern legal system where there are a variety of “sources”
of law, the rule of recognition is correspondingly more complex: the criteria for identifying the
law are multiple and commonly include a written constitution, enactment by a legislature, and
judicial precedents. In most cases, provision is made for possible conflict by ranking these crite-
ria in an order of relative subordination and primacy’. See Hart, The Concept of Law (supra note
25), at 98. See also supra text accompanying notes 60 et seqq. and 77.
443
Art. 20 of the Covenant read as follows: ‘(1) The Members of the League severally agree that this
Covenant is accepted as abrogating all obligations or understandings inter se which are incon-
sistent with the terms thereof, and solemnly undertake that they will not hereafter enter into
any engagements inconsistent with the terms thereof.
‘(2) In case any Member of the League shall, before becoming a Member of the League, have
undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of
such Member to take immediate steps to procure its release from such obligations’.
444
See H. Lauterpacht, The Covenant as the ‘Higher Law’, 17 Brit. Y.B. Int’l L. 54 (1936). See also
L. Oppenheim, International Law: A Treatise. Vol. I.–Peace (8th ed. 1955, H. Lauterpacht ed.),
at 896: ‘The Charter … constitutes what may be called a “higher law,” with a resulting limita-
tion of the contractual capacity of the members of the United Nations’.
104 Chapter Four

event of a conflict … [the] obligations under the present Charter shall prevail’
(Article 103).445 The precedence of the Charter was also emphasized by the ICJ in
its 1992 order in the Lockerbie case and provided the basis of its denial of provi-
sional measures. The Court affirmed the binding effect of Security Council
Resolution 748 (1992) vis-à-vis any rights claimed by Libya under the Montreal
Convention.446 Goodrich & Hambro concluded from their analysis of Article
103 that ‘[t]he Charter thus assumes the character of basic law of the international
community’.447 According to Professor Tomuschat, ‘the purported effect of Article
103 has never been called into question. According to all probability, states today
view the Charter as the constituent instrument of the international community,
which sets the framework for any permissible governmental activity’.448 This
observation was confirmed by the Court of First Instance of the European
Communities when it held, in the cases of Yusuf and Kadi, that
[f ]rom the standpoint of international law, the obligations of the Member States
of the United Nations under the Charter of the United Nations clearly prevail
over every other obligation of domestic law or of international treaty law includ-
ing, for those of them that are members of the Council of Europe, their obliga-
tions under the ECHR [European Convention on Human Rights] and, for those
that are also members of the [European] Community, their obligations under the
EC Treaty. … As regards … the relationship between the Charter of the United

445
The provision of Art. 103 was reiterated by the General Assembly in its Declaration on Principles
of International Law of 1970 (supra note 441), principle of good faith, last para.
446
See Lockerbie, 1992 ICJ Rep. at 15, paras. 39–41, and 126–27, paras. 42–44, respectively. For
a brief discussion of the case, see Yoram Dinstein, The Interaction between Customary
International Law and Treaties, 322 Recueil des Cours 243, 422–24 (2006), and John P. Grant,
The Lockerbie Trial, in The Max Planck Encyclopedia of Public International Law, Oxford
University Press, 2008, online edition. See also Separate Opinion of Judge Shahabuddeen, 1992
ICJ Rep. at 28–29, 140–41 (quoting Nicaragua, 1984 ICJ Rep. 440, para. 107); Dissenting
Opinion of Judge Bedjaoui, ibid. at 47, 157, paras. 29–30; Dissenting Opinion of Judge
Weeramantry, ibid. at 60–61, 67, 170–71, 177. See Vera Gowlland-Debbas, The Relationship
between the International Court of Justice and the Security Council in the Light of the Lockerbie
Case, 88 Am. J. Int’l L. 643, 647–48 (1994). See also Dissenting Opinion of Judge Hackworth,
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Adv. Op.,
1954 ICJ Rep. 76, 83 (quoted in Dissenting Opinion of Judge Shahabuddeen, Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, 1990 ICJ Rep. 18,
49 (Order of Feb. 28) ): ‘The duty of a court when faced with apparent incompatibility between
a legislative enactment and the constitution (the Charter) is to try to reconcile the two. If this
cannot be done the constitution must prevail’. See also Köck, UN-Satzung und allgemeines
Völkerrecht (supra note 115), at 88–89 (text and notes).
447
See Leland M. Goodrich & Edvard Hambro, Charter of the United Nations: Commentary and
Documents 519 (2d ed. 1949) (emphasis added).
448
Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, Rev. Int’l
Comm’n Jurists, June 1992, at 38, 43–44.
 The UN Charter as a Constitution 105

Nations and international treaty law, that rule of primacy is expressly laid down
in Article 103 of the Charter … .449
With reference to the relationship between the UN and regional organizations as
set out in Article 53, paragraph 1 of the Charter (‘no enforcement action shall be
taken under regional arrangements or by regional agencies without the authoriza-
tion of the Security Council’), the Foreign Minister of Columbia, speaking for
the Latin American states, declared at the San Francisco Conference that ‘[t]he
Charter, in general terms, is a constitution, and it legitimatizes the right of collec-
tive self-defense to be carried out in accord with regional pacts [only] so long as
they are not opposed to the purposes and principles of the Organization as
expressed in the Charter’.450
In its Friendly Relations Declaration of 1970, the General Assembly stressed
‘the paramount importance of the Charter of the United Nations in the promotion
of the rule of law among nations’.451 The unique position of the UN Charter in
the present international legal order is indeed recognized and reflected by many
rules of international treaty law. These rules are mainly intended to secure, in the
context of a particular regime, the primacy of the Charter over ‘any other inter-
national agreement’ (Article 103 of the Charter). By way of example, I mention
Article 102 of the Charter of the Organization of American States (OAS) of
1948: ‘None of the provisions of this Charter shall be construed as impairing the
rights and obligations of the Member States under the Charter of the United
Nations’.452 According to Article 1, paragraph c of the Statute of the Council of
Europe of 1949, ‘[p]articipation in the Council of Europe shall not affect the
collaboration of its members in the work of the United Nations …’. Article XXI
lit. c of the General Agreeent on Tariffs and Trade of 1947 (GATT 1947) said
that ‘[n]othing in this Agreement shall be construed to prevent any contracting
party from taking any action in pursuance of its obligations under the United
Nations Charter’. Article 7 of the North Atlantic Treaty (NATO Treaty) of 1949
provides that ‘[t]he Treaty does not effect, and shall not be interpreted as affecting,

449
See Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union
and Commission of the European Communities, Case T-306/01, Judgment of 21 Sep. 2005, paras.
231 and 233; Yassin Abdullah Kadi v. Council of the European Union and Commission of the
European Communities, Case T-315/01, Judgment of 21 Sep. 2005, paras. 181 and 183.
450
XII UNCIO 680, quoted in Nicaragua, 1986 ICJ Rep. 14, 259, 358 (Schwebel, J., sep. op.).
451
Declaration on Principles of International Law (supra note 441), Preamble, para. 4 (emphasis
added).
452
See also Art. 30(1) of the 1969 Vienna Convention on the Law of Treaties and Art. 30(6) of the
1986 Vienna Convention on Treaties with and between International Organizations (determin-
ing the rights and obligations of states parties to successive treaties ‘[s]ubject to Article 103 of
the Charter of the United Nations’).
106 Chapter Four

in any way the rights and obligations under the [UN] Charter … , or the primary
responsibility of the Security Council for the maintenance of international peace
and security’. At the very end of its codification of the law of state responsibility,
the International Law Commission made a general reservation in favor of the UN
Charter: ‘These articles are without prejudice to the Charter of the United
Nations’.453 The definition of the crime of aggression envisaged in Article 5, para-
graph 2 of the Rome Statute of the International Criminal Court of 1998 ‘shall
be consistent with the relevant provisions of the Charter of the United Nations’.
Occasionally, provisions of the UN Charter were made an integral part of
another treaty. For instance, five years before becoming a member of the United
Nations in 1956, Japan accepted in the San Francisco Peace Treaty of September
8, 1951, ‘the obligations set forth in Article 2 of the Charter of the United
Nations’.454
Other rules of treaty law shall assure the effective discharge of duties of the
Security Council under the UN Charter. For instance, according to Article 16 of
the Rome Statute no investigation or prosecution may be commenced or pro-
ceeded with after the Security Council has requested the Court to that effect.
In the Treaty on European Union, as amended by the 2007 Treaty of Lisbon,
the UN Charter is prominently referred in the article about the aims of the Union:
‘In its relations with the wider world, the Union … shall contribute to peace,
security, the sustainable development of the Earth, … as well as to the strict
observance and the development of international law, including respect for the
principles of the United Nations Charter’.455 In addition, the Charter appears in
the articles of the Treaty about the Union’s external action, the Common Foreign
and Security Policy and the Common Security and Defence Policy. According to
Article 21, paragraph 1, of the Treaty ‘[t]he Union’s action on the international
scene shall be guided by … respect for the principles of the United Nations
Charter and international law’.456
In addition, there are myriads of bilateral and multilateral treaties the pream-
bles of which refer to, and reaffirm the rules of, the UN Charter. In the OAS

453
See Art. 59 of the Articles on Responsibility of States for Internationally Wrongful Acts; Annex
to UN General Assembly Res. 56/83 of 12 Dec. 2001. Cf. [1996] Report of the Int’l L. Comm’n,
GAOR, Suppl. No. 10, UN Doc. A/51/10, 121, at 139 n. 226: ‘The Commission recognized
that, to the extent that articles are ultimately adopted in the form of a convention, the relation-
ship of such a convention with the Charter is governed by Article 103 of the Charter’. Cf. also
the commentary of the ILC on Art. 59 of the 2001 Articles, para. 2: ‘[T]he articles cannot affect
and are without prejudice to the Charter of the United Nations. The articles are in all respects
to be interpreted in conformity with the Charter of the United Nations’.
454
See Art. 5(a) of the Treaty of Peace with Japan (136 UNTS 45 (1952) ).
455
Art. 3(5) of the Treaty on European Union (EU Treaty) (supra note 240).
456
See also Art. 21(2)(c) and Art. 42(1) and (7) of the EU Treaty.
 The UN Charter as a Constitution 107

Charter, for example, the American States ‘[r]esolved to persevere in the noble
undertaking that humanity has conferred upon the United Nations, whose prin-
ciples and purposes they solemnly reaffirm’. The States Parties to the Vienna
Convention on Diplomatic Relations of 1961 declared to have in mind ‘the pur-
poses and principles of the Charter of the United Nations concerning the sover-
eign equality of States, the maintenance of international peace and security, and
the promotion of friendly relations among nations’.
To sum up, states have constantly and consistently affirmed the unique place
of the Charter in the present structure of international law—accepting, in fact,
the existence of an ‘international legal order under the United Nations’.457 And
they have not only done so when the political costs of a commitment to the
Charter were low (as in the time of the East-West confrontation when many of its
norms could not be enforced) but throughout the life of the Charter—in the
early days and during the Cold War as much as in the 1990s or today.

‘Eternity’ and Amendment

The French Constitution of 1793 held that no generation can subject future gen-
erations to its laws, and that therefore a people always has the right to review, to
reform and to change its constitution.458 The same view was taken by Thomas
Jefferson when he wrote, in 1816: ‘Each generation is as independent as the one
preceding, as that was of all which had gone before. It has then, like them, a right
to choose for itself the form of government it believes most promotive of its own
happiness; consequently, … a solemn opportunity of doing this every nineteen or
twenty years, should be provided by the constitution …’459
And yet, another distinguishing quality of a constitution is its claim to be valid
regardless of the passing of time—every constitution aspires to eternity. The UN
Charter, too, makes such a claim. It only provides for amendment, not for
termination.460
According to Articles 108 and 109, amendments to the Charter come into
force for all UN members when they have been adopted by a two-thirds majority
of the General Assembly, or the General Conference, respectively, and ratified by
two thirds of the member states, including the permanent members of the Security

457
This is an expression used by the Court of First Instance in its Yusuf and Kadi judgments of 21
Sep. 2005 (supra note 449), paras. 228 and 178, respectively. Emphasis added.
458
See Art. 28 of the Constitution of 24 June 1793: ‘Un peuple a toujours le droit de revoir, de
réformer et de changer sa constitution. Une génération ne peut assujettir à ses lois les généra-
tions futures’.
459
See Thomas Jefferson, Letter to Samuel Kercheval, 12 July 1816, in Thomas Jefferson: Writings
1395, 1402 (Merrill D. Peterson ed., 1984).
460
See Certain Expenses of the UN, 1962 ICJ Rep. 151, 182, 185 (Spender, J., sep. op.).
108 Chapter Four

Council. There is a striking difference between that rule and the one traditionally
applied to the amendment of international treaties—the requirement of consen-
sus among the parties.
Referring to Article 26 of the Covenant of the League of Nations, which pro-
vided for amendments to the Covenant by majority decision,461 Sir John Fischer
Williams wrote:
This proposition is of exceptional importance. It involves the proposition that the
Covenant itself is not a mere agreement between independent states imposing
only contractual obligations. An agreement of that merely contractual character
could obviously not be amended without the assent of each individual contracting
party. The Covenant is, on the contrary, a document constitutive of a permanent
organization …, and the permanency of the organization requires that its consti-
tution should be subject to readjustment to the conditions of its life; otherwise it
could not survive. For this readjustment the unanimity of the corporation is not
requisite; a dissentient minority cannot veto the readjustment …462
While this is also true in the case of the Charter, the latter has taken another
major step towards constitutionalism. According to Article 26, paragraph 2 of the
Covenant, an amendment did not bind a dissenting state, ‘but in that case it shall
cease to be a Member of the League’.463 In contrast, a UN member state, although
opposing an amendment, is bound by the same. This rule, Goodrich & Hambro
commented, ‘imposes rather serious obligations on Members who have not voted
in favor of, and have refused to ratify, the amendment in question’.464
The provision … means that all Members, except the five permanent members of
the Security Council, endorse a blank check obligating themselves to accept in
advance certain international commitments [even those] which their duly accredited
representatives have voted against and which the constitutional authorities of the
state after mature consideration have refused to ratify. The rule was adopted because
of the desire to make the United Nations a living and developing organism. … The

461
Art. 26 of the Covenant read as follows: ‘(1) Amendments to this Covenant will take effect
when ratified by the Members of the League whose Representatives compose the Council and
by a majority of the Members of the League whose Representatives compose the Assembly.
‘(2) No such amendment shall bind any Member of the League which signifies its dissent
therefrom, but in that case it shall cease to be a Member of the League’.
462
John Fischer Williams, The League of Nations and Unanimity, 19 Am. J. Int’l L. 475, 485
(1925). For the UN Charter, see Alf Ross, Constitution of the United Nations: Analysis of Structure
and Function, at 35 et seq. (1950).
463
Cf. Art. 40(4) of the 1969 Vienna Convention on the Law of Treaties (amendment of multilat-
eral treaties): ‘The amending agreement does not bind any State already a party to the treaty
which does not become a party to the amending agreement’.
464
See Goodrich & Hambro, Charter of the United Nations (2d ed.) (supra note 447), at 538.
 The UN Charter as a Constitution 109

United Nations Conference adopted Article 108 in full awareness of [possible] alter-
natives and after having discussed the matter very fully.465
In comparison, neither the (unsuccessful) Constitutional Treaty of the European
Union of 2004 nor the EU Treaty of Lisbon of 2007 abandoned the requirement
of unanimous ratification by member states.466
Although the Charter has given up this requirement which is typical of treaties,
it nevertheless is difficult to amend—a constitutional quality Thomas Franck has
called ‘indelibleness’. ‘Real constitutions’, he wrote, ‘are not easily nipped and
tucked or reconfigured to meet the needs of contemporary fashion. The Charter,
like a constitutive instrument, is extraordinarily hard to amend. Except for the
1963 amendments … there has been a notable absence of revision in its main
terms … As with many national constitutions, the Charter creates a contract
intended obdurately to withstand the vicissitudes of shifting political values and
fortunes’.467 Indeed, in spite of many efforts to amend the Charter, there have
been so far only three cases in which the amendment procedure of Article 108
was successfully applied, all of them dealing with the number of members of the
Security Council and the Economic and Social Council and the voting procedure
of both organs.468
There is clearly a tension between the requirement, mentioned above, that a
constitution ‘should be subject to readjustment to the conditions of its life’,469
and a constitution’s desire to determine a community’s political life for an extended
period of time and its corresponding resistance to easy change.

Universality and the Problem of Sovereignty

An outstanding feature of the ideal type of constitution is the principle of universal-
ity or inclusiveness—a constitution applies without exception to all members of the
community it purports to govern (which does, however, not imply that it has to
treat them all alike). The community in question here is the entire international
legal community.470 It includes, in particular, ‘sovereign’ states regardless of their

465
Ibid. at 538 et seq.
466
See Art. IV-443 of the Constitutional Treaty (supra note 256) and Art. 54 of the EU Treaty
(supra note 240), respectively. Cf. Maduro, The Importance (supra note 256), at 352: ‘If the
current process [leading to the Constitutional Treaty of 2004] had abandoned the requirement
of unanimous ratification by the states, this would have signified the recognition of an inde-
pendent constitutional authority vested in the Union. … The Union’s future would be decided
by a single European polity and not by an agreement of all national polities’.
467
Franck, Is the U.N. Charter a Constitution? (supra note 340), at 97–98.
468
See Karl et al., Comment on Art. 108 (supra note 389), at 1356–57.
469
See Fischer Williams, supra text accompanying note 462.
470
See supra ch. 3, International Community and International Constitution.
110 Chapter Four

membership in the UN Organization. This raises the question whether a state which
has not applied for membership although it could have done so can be regarded as
committed to observing the Charter.471 Since today virtually all existing states whose
independent statehood is generally recognized are members of the UN, the problem
has lost most of its practical importance. But it is still of a high theoretical signifi-
cance, considering the difficulties leading proponents of a constitutional reading of
the Charter had in determining the legal position of non-member states.472
The starting point for a discussion of the issue is a long-established rule, codi-
fied in Article 34 of the Vienna Convention on the Law of Treaties: ‘A treaty does
not create either obligations or rights for a third State without its consent’. This
rule is a principal consequence of the sovereignty and equality of states.
It may be argued that the Charter is universally binding simply because the
founding member states, dismissing in that respect the established pacta tertiis
non nocent rule, wanted it to be that way.473 Such self-authorization could be
understood as part of the revolutionary grand design underlying the Charter
which I referred to above.474 However, the claim that the Charter itself lays to the
allegiance of non-member states in its Article 2, paragraph 6,475 is phrased in

471
I am dealing here with the issue of a state that has freely decided to remain outside the
Organization (‘voluntary non-membership’ ). The prime example is Switzerland which had
regarded its permanent neutrality as an obstacle to UN membership and only joined the UN in
2002. This issue must be distinguished from the question whether a state that satisfies the re-
quirements of Art. 4 of the Charter but is not admitted to membership because of procedural
reasons (especially a veto of a permanent member of the Security Council obstructing the rec-
ommendation of the Council provided for in Art. 4(2) ) is protected by the rules of the Charter
on the one hand, and bound by those rules on the other hand (‘involuntary non-membership’ ).
An example is the Republic of China (Taiwan) the efforts of which to become a member of the
UN failed several times because of the opposition of the People’s Republic of China that regards
Taiwan as an integral part of its own territory. Yet another issue is the legal relevance of the
Charter for a de facto régime (or, as Brownlie puts it, a state in statu nascendi [see Brownlie,
Principles, supra note 21, at 77 et seq.]) which has not yet consolidated its independent state-
hood or has not yet been generally recognized by other states.
472
See supra, The Charter and Non-UN Member States: Doctrinal Deficits.
473
See, e.g., Köck, UN-Satzung und allgemeines Völkerrecht (supra note 115), at 91: ‘The UN
Charter is now the constitution of the international community which non-member states, too,
must recognize as an objective reality’.
474
See supra, A ‘Constitutional Moment’.
475
Art. 2(6) is supplemented by Art. 32 according to which a non-member state, ‘if it is a party to
a dispute under consideration by the Security Council, shall be invited to participate, without
vote, in the discussion relating to the dispute’. Art. 32 confers a (constitutional) right to partici-
pation on non-member states. See Rudolf Dolzer, Comment on Art. 32, in I The Charter of the
United Nations (2nd ed.) (supra note 115) 580, 581. See also Art. 35(2) (right of non-member
state to bring to the attention of the Security Council or of the General Assembly any dispute
to which it is a party).
 The UN Charter as a Constitution 111

rather cautious terms—the Organization ‘shall ensure’ that such states ‘act in
accordance’ with the principles set out in Article 2, paragraphs 1–5 of the Charter
‘so far as may be necessary for the maintenance of international peace and secu-
rity’. In my view, another course of reasoning, which does not resort to the ‘revo-
lution’ argument, is more convincing: I want to suggest that it is a functional
interpretation of the concept of sovereignty – as the basis of the pacta tertiis non
nocent rule – which explains the Charter’s universal legal force, and accordingly
legitimizes the claim made on non-member states by Article 2, paragraph 6 of the
Charter.
Sovereignty today cannot mean unlimited freedom of action of states in the
international sphere as this would be incompatible with the very idea of an inter-
national legal order. Rather, the notion describes the legal status which the inter-
national community assigns to its principal members at a given point of time.476
‘[S]overeignty of the States, as subjects of international law, is the legal authority
of the States under the authority of international law’.477 In other words, sover-
eignty is a collective or umbrella term, denoting the rights which, at a given time,
a state is accorded by international law (or, to be more precise, the constitution of
the international community), and the duties imposed upon it by that same law.
These specific (‘sovereign’) rights and duties constitute ‘sovereignty’; they do not
‘flow from’ it. Sovereignty is the legal status of an independent state as defined
(and not only ‘protected’) by international law. Accordingly, sovereignty is neither
‘natural’ nor static. In a process that has placed ever more constraints on the free-
dom of action of states, its substance has changed, and will further change in the
future.
At the San Francisco Conference, ‘sovereign equality’ of states (Article 2, para-
graph 1 of the Charter) was deliberately adopted as a ‘new term’.478 It is ‘sovereign
equality’, not ‘equal sovereignty’ the Charter speaks of.479 The purpose of the new
expression was clear: The idea of equality of states in law was given precedence
over that of sovereignty by relegating the latter to the position of an attributive
adjective merely modifying the noun ‘equality’. In this combination, sovereignty

476
For a more comprehensive discussion, see Bardo Fassbender, Sovereignty and Constitutionalism
in International Law, in Sovereignty in Transition 115, 128 et seq. (Neil Walker ed., 2003):
‘Sovereign equality as constitutional autonomy’.
477
Hans Kelsen, The Principle of Sovereign Equality of States as a Basis for International
Organization, 53 Yale L. J. 207, 208 (1944).
478
See Fassbender, Sovereignty and Constitutionalism (supra note 476), at 128.
479
Cf. Henkin, The Mythology of Sovereignty (supra note 115), at 356: ‘[T]he word “sovereignty”
is not in the Charter; the concept of sovereignty is not in it. (Its only mention is in the phrase
“the principle of sovereign equality,” which appears to mean nothing more than “equality” in
status and rights.)’
112 Chapter Four

was meant to exclude the legal superiority of any one state over another,480 but
not a greater role played by the international community vis-à-vis all its mem-
bers. From the two elements, ‘sovereignty is in a process of progressive erosion,
inasmuch as the international community places ever more constraints on the
freedom of action of States’. We witness a ‘development towards greater commu-
nity discipline … driven by a global change in the perception of how the right
balance between individual State interests and interests of mankind as a whole
should be established’.481 In the ‘Friendly Relations Declaration’, the General
Assembly stated that ‘[a]ll States … are equal members of the international com-
munity’, thus explaining that in the system instituted by the Charter a state’s
right to independence is qualified by an obligation to promote and protect com-
mon values of the community.482
The actual enjoyment of sovereign equality by a state depends on a compre-
hensive prohibition of the use of force in international relations, and a working
mechanism to implement and enforce this prohibition.
In principle, to set forth sovereign equality means to respect the existence and integ-
rity of each State. However, … far into the twentieth century the legal position did
not live up to that proposition in that the use of force as the very denial of legal equal-
ity was not forbidden. With the comprehensive ban on the use of force under Article
2(4) of the UN Charter the system has eventually found its logical coherence.483
Aggression cannot be left to be handled exclusively in the relationship between
the aggressor State and its victim because … neglect [of such a violation by the
international community] would mean denying in practice the Grundnorm of inter-
national law, which is sovereign equality. If there was no community mechanism to
uphold and safeguard territorial integrity and self-determination of peoples, the law
of the strongest would obtain. International law would be deprived of any real
meaning. Thus, the function of maintaining international peace and security can be
called an essentiale of a system that has been labelled the ‘international legal order’
and is designed to operate as such.484

480
Par in parem non habet imperium or, as the ‘Friendly Relations Declaration’ (supra note 441)
puts it, ‘States are juridically equal’. See also the declaration adopted by the governments repre-
sented at the Inter-American Conference on War and Peace in Mexico City, 6 March 1945 (‘Act
of Chapultepec’): ‘[A]ll sovereign States are juridically equal amongst themselves’ (International
Conciliation, no. 410, Apr. 1945, at 337). See further Art. 9 of the Charter of the Organization
of American States, and Arts. III, no. 1, and V of the Charter of the Organization of African
Unity (2 ILM 766, 768 (1963) ).
481
See Tomuschat, Obligations (supra note 176), at 292.
482
See Colin Warbrick, The Principle of Sovereign Equality, in The United Nations and the Principles
of International Law: Essays in Memory of Michael Akehurst 204, 212–14 (Vaughan Lowe &
Colin Warbrick eds., 1994).
483
Tomuschat, Obligations (supra note 176), at 293. See also ibid. at 221–22, 334.
484
Ibid. at 355.
 The UN Charter as a Constitution 113

The comprehensive ban on the use of force was imposed on states only by the UN
Charter. It did not exist in international law before the Charter entered into
force.485 The necessary mechanism to safeguard the sovereign equality of states
was also established by the Charter. Therefore, adherence to the Charter does not
diminish a state’s sovereign equality, but is a necessary prerequisite for the de facto
enjoyment of that right. It is only by the Charter and the organization it has
established that a state’s sovereign equality is effectively protected. Accordingly,
the status of independence enjoyed by states under the Charter may be referred
to as ‘constitutional autonomy’.486
If the Charter were interpreted as a treaty in favor of third states, non-member
states would benefit from the protection granted by the Charter, its procedural
guarantees and the restrictions placed upon other states with respect to their right
of self-defense. Yet non-member states would not be subject to any obligation set
out in the Charter. Nor could the Security Council lawfully take action against
them. It is obvious that such a privileged position for some states would go
directly against the fundamental principle of equality—a principle which is mir-
rored and concretized by the Charter’s system of collective security.487 It follows
from the concept of sovereign equality that if a state can refer to Chapter VII as a
remedy against unlawful action by other states, it must also be a possible addressee
of Charter VII measures when it violates the Charter.
This, in turn, challenges the opinion that third states, as long as they do not
contravene Charter provisions, are not bound by the instrument.488 Either a state
is bound by the Charter or it is not. Why should a non-member state, so long as
it complies with the Charter, be regarded as not being obliged to respect it if, in
the very second it breaches the instrument, it is considered to be subject to it?
Such a view is not logical. In a system governed by the rule of law, one can only
be held responsible for an action if one was subject to the rules in question at the

485
The Treaty Providing for the Renunciation of War as an Instrument of National Policy of 27
Aug. 1928, also known as the ‘Pact of Paris’ or ‘Kellogg-Briand Pact’ (94 LNTS 57 (1929), re-
printed in Louis Henkin et al., Basic Documents Supplement to International Law: Cases and
Materials 330 (3d ed. 1993) ), prohibited war of aggression, but not military reprisals or the
threat of force in the way Art. 2(4) of the UN Charter does. Neither did the Pact provide for
organized sanctions in case of its violation. Efforts of the League of Nations in 1930 and 1931
to introduce the principles of the Pact into the text of the Covenant failed.
486
See Fassbender, Sovereignty and Constitutionalism (supra note 476), at 128 et seq.
487
In the Charter, ‘rights and benefits’ and ‘obligations’ generally have a complementary character.
See Art. 2(2) of the Charter. Only states that are able and willing to carry out the obligations can
become members of the Organization and enjoy the respective rights. See Art. 4(1). A member
against which preventive or enforcement action has been taken by the Security Council may be
suspended from the exercise of the rights and privileges of membership. See Art. 5.
488
See supra, The Charter and Non-UN Member States: Doctrinal Deficits.
114 Chapter Four

time the action was taken. As Kelsen said, ‘[i]f the Charter attaches a sanction to
a certain behaviour of non-Members, it establishes a true obligation of non-
Members to observe the contrary behaviour’.489
Article 2, paragraph 6 of the Charter supports Kelsen’s view. The pacta tertiis
non nocent rule itself is based on the principle of sovereign equality. It is not by
virtue of Article 2, paragraph 6 that the Charter is binding on non-member states.
Rather the Charter is binding because of the overriding principle of sovereign
equality. Accordingly, non-member states are not only bound by ‘these Principles’
(of Article 2), but the Charter as a whole. This means that binding decisions of
the Security Council can be addressed to a non-member state—be it a law-breaker
or a state expected to assist the UN in the performance of preventive or enforce-
ment action. Equally, the priority of the Charter over conflicting obligations
(Article 103) applies to members and non-members alike.490
The criterion of universal application of the Charter is therefore met.491
It is concluded that a comparison of the Charter with the ideal type of constitu-
tion reveals a similarity sufficiently strong to attribute constitutional quality to the
instrument. Other authors have used a similar methodology and arrived at con-
clusions which in principle endorse my position. Let me here quote only two –
but eminent – voices, the first of an international lawyer, and the second of a
social theorist and philosopher. Thomas Franck wrote in 2003:
Perpetuity, indelibleness, primacy, and institutional autochthony [understood as a
system of governmental power]: these four characteristics of the UN Charter relate

489
See Kelsen, The Law of the U.N. (supra note 359), at 107.
490
For an expression of the opposite (traditional) view, see Bernhardt, Comment on Art. 103
(supra note 115), at 1298: ‘For treaties between non-member states, Art. 103 is of no relevance’.
However, with regard to treaties concluded between UN members and non-member states the
author arrived at a different conclusion: ‘[T]here are good reasons for assuming that treaties
concluded [by UN member states] with third states that are in clear or at least apparent contra-
diction to the Charter are not only unenforceable but also invalid with respect to such states
[i.e., the third states]. The Charter has become the “constitution” of the international commu-
nity and third states must, in their treaty relations and otherwise, respect the obligations arising
under the Charter for UN members’. (Ibid.) If the author acknowledges the existence of such a
generally binding constitution, it is hard to see why non-member states should not be obliged
to respect it inter se, too.
491
I deemed it necessary to establish the universality, or inclusiveness, of the Charter with regard
to (‘voluntary’) non-member states as a prerequisite of its quality as the constitution of the in-
ternational community. Conversely, Professor Köck affirmed the universal legal force of the
Charter because of its being a constitution (see supra note 473). However, he did not explain
why this quality can be attributed to it. Admittedly, there is a dialectic relationship between the
two arguments, and I agree with Professor Köck’s ultimate finding: If the Charter is the consti-
tution of the international community, it is indeed binding on all members of that
community.
 The UN Charter as a Constitution 115

that unique treaty more proximately to a constitution than to an ordinary contrac-

tual normative arrangement. But does it make a difference? Indeed it does. Whether
or not the Charter is a constitution affects the way in which the norms of systemic
interaction are to be interpreted by the judiciary, the political organs and by the
Secretary-General … . [T]he question – is the UN Charter a constitution? – is not
one of purely theoretical interest. … Indeed, how it is answered may well determine
the ability of the Organization to continue to reinvent itself in the face of new chal-
lenges, thereby assuring its enduring relevance to the needs of states and the emer-
gence of an international community.492
In his recent book The Divided West Jürgen Habermas has also taken up my ana-
lytical effort by identifying three ‘normative innovations’ which provide the UN
Charter with a constitutional quality and make it possible to interpret the
Charter as a global constitution: (1) the explicit combination of the goals of
safeguarding world peace and protecting human rights, (2) the coupling of the
prohibition of the use of force with a realistic threat of sanctions and criminal
prosecution, and (3) the inclusiveness (Inklusivität) of the UN and the universal-
ity of UN law.493 Habermas concluded that the UN Charter ‘is a framework in
which UN member states no longer must understand themselves exclusively as
subjects bringing forth international treaties; they rather can now perceive them-
selves, together with their citizens, as the constituent parts of a politically consti-
tuted world society’.494

492
Franck, Is the U.N. Charter a Constitution? (supra note 340), at 102, 106. See also Ronald St.
John Macdonald, The International Community as a Legal Community, in Towards World
Constitutionalism (supra note 20), at 859–68 (describing characteristic features of the UN
Charter as ‘the global constitution’). For an early examination of constitutional features of the
Charter, see Eduardo Jiménez de Aréchaga, Derecho Constitucional de las Naciones Unidas 621–
36 (1958). The author concluded that ‘the Charter is the constitution of the international com-
munity, a constitution which entered into force by means of an international treaty with the
formalities and techniques of conventional law’ (ibid. at 621). For a summary of Jiménez de
Aréchaga’s findings in English, see Rama-Montaldo, Contribution of the General Assembly
(supra note 20), at 504–06.
493
See Jürgen Habermas, Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?
[Does the constitutionalization of international law still have a chance?], in id., Der gespaltene
Westen 113, 159 (2004). (Engl. trans. by C. Cronin under the title The Divided West 115,
160–61 (2006).) For a critical discussion of Habermas’ turn to constitutionalism in the context
of his cosmopolitan position, see Neil Walker, Making a World of Difference? Habermas,
Cosmopolitanism and the Constitutionalization of International Law, in Multiculturalism and
Law 219–34 (Omid A. Payrow Shabani ed., 2007) (also published as EUI Working Paper LAW
No. 2005/17).
494
Habermas, ibid. at 159 and 161, respectively.
Chapter 5
Conceptual Distinctions

The Dual Constitutional Function of the UN Charter

All the norms of the Charter share a constitutional quality. For their implementa-
tion, the substantive rules depend on the rules of procedure, and the rules of
procedure are meaningless without material norms. The inclusion of rules of pro-
cedure and organization in the circle of constitutional norms of the international
community is a particularly tangible consequence of the view presented here.
One could not arrive at this result if constitutional principles were grounded
solely on customary law.
Notwithstanding this interdependence of substantive and procedural norms,
the Charter has a dual constitutional function: It is both the constitution of the
United Nations as an organization and the constitution of the international com-
munity ‘as a whole’. While the substantive rules of the Charter belong to ‘both
constitutions’, and accordingly are binding on all members of the international
community regardless of their membership in the UN Organization, the non-
substantive rules (like the provisions about the composition of UN organs, elec-
tions, voting and procedure in the stricter sense) are generally rules of the
Organization only. They entitle and oblige only the member states and the organs
of the Organization.495

The Normative and the Real Constitution of the International Community

The UN Charter is a normative constitution. As a norm, or legal standard, a

constitution does not describe the state of a political community as it is but as
it ought to be. A normative constitution is meant to govern or control the real
conditions of power, not to describe or reflect them.496 The normative notion

495
But see the characteristic exception of Art. 32 of the Charter (supra note 475).
496
For this and the following, see Isensee, Staat und Verfassung (supra note 82), at 92.
 Conceptual Distinctions 117

of constitution became dominant only in the eighteenth century. Before, the

term ‘constitution’ was mainly understood in an Aristotelian sense497 as mean-
ing the concrete conditions of life of a community, and especially its form of
government.
Norm and reality, the normative and the ‘real’ constitution, can be, or become,
inconsistent. There is generally a tension between the two. Political and economic
forces often find constitutional rules confining, and stretch their meaning to
accommodate their particular interests. The normative constitution is able to
endure certain deviations from its standards, and violations of its rules.498 In many
jurisdictions, courts have been empowered to determine such violations and to
reestablish, in a given case, the (normative) constitutional order. However, the
gap between constitutional norm and practice may not become too wide.
Otherwise, the effectiveness of the norm is in danger.499 If in the course of time
real circumstances of constitutional life gravely depart from a norm which origi-
nally related to such conditions, the norm will lose its general power to control
reality.500
For the UN Charter, this distinction between a ‘normative’ and a ‘real’ consti-
tution means that as a matter of principle departures from the rules of the Charter
in international political life do not call into question its constitutional character.
This is even true for violations of the prohibition of the use of force which is at
the heart of the normative program of the Charter. However, there is a limit to
the Charter’s capacity to effectively control the life of the international commu-
nity: Its rules must remain in line with the basic actual conditions of the interna-
tional system. In other words, there must be a general harmony between the
Charter and its ‘constitutional environment’.501 If this environment changes fun-
damentally, the rules of the Charter, the substantive and the procedural, need to
be adapted to the new circumstances. Otherwise, the Charter is at the risk of
becoming a wish list of a more and more distant past, or of looking like the pro-
gram of a play cancelled long ago. To use a phrase coined by Karl Loewenstein,

497
See Aristotle, The Politics 186 et seq. (= Book III, chapters vi and vii) (T.A. Sinclair transl.,
revised by Trevor J. Saunders, 1981).
498
But see, for an understanding of ‘normative’ in the sense of ‘(fully) normatively effective’, Karl
Loewenstein’s definition: ‘[T]o be real and effective, it [a constitution] must be faithfully ob-
served by all concerned; it must have integrated itself into the state society. If this is the case, a
constitution may be spoken of as normative: its norms govern the political process, or the power
process adjusts itself to the norms’. Karl Loewenstein, Political Power and the Governmental
Process 148 (1957).
499
See Scheuner, Verfassung (supra note 75), at 173.
500
See Isensee, Staat und Verfassung (supra note 82), at 93 et seq.
501
See Leo Gross, On the Degradation of the Constitutional Environment of the United Nations,
77 Am. J. Int’l L. 569 (1983).
118 Chapter Five

the Charter may then become a ‘nominal’ constitution only: ‘The factual state of
affairs does not, or not yet [or, we may add, not anymore] permit the complete
integration of the constitutional norms into the dynamics of political life’.502
Articles 108 and 109 of the Charter do not only provide for a possibility of
amending the Charter; they are also setting member states the task ‘of reviewing
the present Charter’ (Article 109, paragraph 1) in order to readjust it to new
conditions and challenges, and thus ensure its effectiveness.

Constitutional Law and ‘General International Law’

What is the relationship between ‘general international law’ (denoting interna-

tional customary law, generally accepted treaty-law and general principles of inter-
national law)503 and the law of the Charter? Following Professors Verdross and
Simma, I suggest that the Charter, as the constitution of the international legal
community, embraces all international law. Sir Humphrey Waldock wrote about
the Covenant of the League of Nations that it ‘was conceived of rather as a multi-
lateral treaty operating within the framework of international law than as the con-
stitution of an international political society within which international law would
operate’.504 In the case of the Charter, exactly the opposite is true.505 Accordingly,
there is no room for a category of ‘general international law’ existing independ-
ently beside the Charter.506 Instead, the Charter is the supporting frame of all inter-
national law and, at the same time, the highest layer in a hierarchy of norms of
international law.507 It is possible, but not absolutely necessary to infer from this
‘higher law’ character that a breach of a constitutional rule merits a stricter regime
of (state) responsibility than that applied to other internationally wrongful acts.508

502
See Loewenstein, Political Power (supra note 498), at 149.
503
The German term is allgemeines Völkerrecht.
504
See Waldock, General Course (supra note 3), at 19.
505
So much was even acknowledged by the socialist legal literature. See Macdonald, The U.N.
Charter (supra note 448), at 892: ‘The clear implication from the writings of many authors is
that the Charter is a kind of “higher law,” … and not to be regarded as particular law carved out
of general international law’ (emphasis added).
506
For an early criticism of ‘paradoxical situations unlikely to contribute to peace’ resulting from a
‘parallelism’ of Charter law and general international law, see Jacob Robinson, Metamorphosis
of the United Nations, 94 Recueil des Cours 493, 511–12 (1958 II).
507
See supra ch. 4, Constitutional Characteristics of the UN Charter: Hierarchy of Norms.
508
The ILC addressed this question in its 1976 commentary on Art. 17 of its draft articles on state
responsibility (‘Irrelevance of the origin of the international obligation breached’). See [1976]
Report of the ILC; [1976] 2 Y.B. Int’l L. Comm’n, pt. 2, 79, 85–86. The Commission declined
to make ‘a distinction between international responsibility incurred in consequence of the
 Conceptual Distinctions 119

The drafters of the Charter assumed the validity of certain legal rules, in par-
ticular those regarding the conclusion and entry into force of treaties, which do
not appear in the text of the Charter. Should one declare such rules to have been
‘incorporated’ by the Charter, or should one rather see them as a body of custom-
ary law of the international community the Charter has tacitly approved of ? Either
answer presumes that the community of states which enacted the Charter had the
authority partly or completely to repeal the then existing law, and that pre-1945
law could not remain in force without the Charter acting as an intermediate.509 In
that sense too, the Charter connects the by-gone era and the new.510
One should distinguish norms of constitutional character from general rules
which are not to be accorded that quality. In the case of the former, to which
primordial (or, in Professor H.L.A. Hart’s language, secondary) rules like pacta
sunt servanda belong, one should speak of ‘incorporation’ because the essential

breach of an obligation deriving from one of [the “constitutional” or “fundamental” principles

of the international legal order], and responsibility resulting from a breach of other interna-
tional obligations’. It argued that the pre-eminence of ‘constitutional’ obligations over others is
determined by their content, not by the process by which they were created. ‘[T]here is, in the
international legal order, no special source of law for creating “constitutional” or “fundamental”
principles’. However, the examples of ‘international crimes’ listed in Art. 19(3) of the draft were
all breaches of Charter law (with the possible exception of the obligation to preserve the human
environment).—Cf. Arts. 40 and 41 of the ILC Articles on State Responsibility of 2001 (supra
note 453) (‘serious breaches of obligations under peremptory norms of general international
law’). Cf. also Art. 48(1)(b) of the Articles (invocation of responsibility in case of a breach of an
obligation ‘owed to the international community as a whole’). For comment, see James
Crawford, The International Law Commission’s Articles on State Responsibility 37 (2002): ‘Part
One [of the Articles] now proceeds on the basis that internationally wrongful acts of a State
form a single category and that the criteria for such acts (…) apply to all …’.
509
Verdross’ & Simma’s definition of the status of pre-Charter ‘general international law’ is clearly
influenced by Kelsen’s teachings (although there is no reference to them). Kelsen explained that
in the case of a revolution, i.e., ‘whenever the legal order of a community is nullified and re-
placed by a new order … in a way not prescribed by the first order itself ’, usually ‘[a] great part
of the old legal order “remains” valid also within the frame of the new order. But the phrase
“they remain valid,” does not give an adequate description of the phenomenon. It is only the
contents of these norms that remain the same, not the reason of their validity. They are no
longer valid by virtue of having been created in the way the old constitution prescribed. That
constitution is no longer in force; it is replaced by a new constitution … If laws which were
introduced under the old constitution “continue to be valid” under the new constitution, this
is possible only because validity has expressly or tacitly been vested in them by the new constitu-
tion. The phenomenon is a case of reception (similar to the reception of Roman law). The new
order “receives,” i.e., adopts, norms from the old order; this means that the new order gives va-
lidity to (puts into force) norms which have the same content as norms of the old order.
“Reception” is an abbreviated procedure of law-creation’. See Kelsen, General Theory (supra note
26), at 389–90.
510
See supra note 1.
120 Chapter Five

unity of the constitutional order devised in 1945 is thereby emphasized. Rules

belonging to the latter group, such as customary rules of the law of the sea, may
better be referred to as customary international law upheld by the Charter.
The same distinction between international constitutional law and other norms
of international law applies to treaty law tacitly confirmed by the Charter in
1945. Pre-1945 contractual rules of a constitutional character, for instance the
renunciation of war as an instrument of national policy in the 1928 Kellogg-
Briand Pact, have generally been formally adopted and modified by the Charter.
Accordingly, there is no need to speak of informal incorporation. On the other
hand, the bulk of treaty law upheld by the Charter, such as the 1907 Hague
Convention Respecting the Laws and Customs of War on Land, has the rank of
ordinary international law.
Constitutional rules which preceded the Charter have become a part of it, and
they are subject to the relevant rules of interpretation and amendment, the prac-
tice of the UN organs, etc. They are valid solely in the form the Charter has given
them.511 Neither can new customary law come into being which would amend,
or derogate from, Charter law. This already follows from Article 103 of the
Charter which teleologically can only be read to give the Charter priority over all
conflicting obligations of states regardless of their formal source. There is no par-
allel existence of customary constitutional rules and Charter rules. The United
States Government was right when it argued in the Nicaragua case that ‘the provi-
sions of the United Nations Charter … subsume and supervene related principles
of customary and general international law’.512 Indeed, ‘the existence of principles
in the United Nations Charter precludes the possibility that similar rules might
exist independently in customary international law’.513
But the Court rejected this argument, holding that ‘even if two norms belonging
to two sources of international law appear identical in content, and even if the States
in question are bound by these rules both on the level of treaty-law and on that of
customary international law, these norms retain a separate existence’.514 The Court’s

511
In the ‘Friendly Relations Declaration’ (supra note 441), the General Assembly distinguished be-
tween ‘provisions of the Charter’ and provisions of ‘any international agreement prior to the
Charter régime’ (cf. the principle that states shall refrain from the threat or use of force, para. 10).
512
See Nicaragua, 1986 ICJ Rep. 14, 93, para. 173.
513
Id. at 93, para. 174 (summarizing the U.S. view) (emphasis added). For that reason, the American
Society of International Law misleadingly declared in 2006 that ‘[r]esort to armed force is gov-
erned by the Charter of the United Nations and other international law’, the latter understood
as customary international law ‘in addition to the Charter’ (emphasis added). See ‘ASIL
Resolution on the Use of Armed Force and the Treatment of Detainees’, 30 March 2006, in
ASIL Newsletter vol. 22, no. 3, at 3 (with accompanying explanations by Mary E. O’Connell).
514
Nicaragua, 1986 ICJ Rep. 95, para. 178 (emphasis added).
 Conceptual Distinctions 121

remarks are certainly correct in so far as the general relationship between norms
belonging to different categories of sources of international law is concerned.515 But
they overlook the special case of constitutional rules expressly or implicitly codified
in the Charter.516 The Court went so far as to claim that ‘the Charter gave an
expression … to principles already present in customary international law, and that
law has in the subsequent four decades developed under the influence of the Charter,
to such an extent that a number of rules contained in the Charter have acquired a
status independent of it’.517 But how shall law expressly adopted by the Charter, and
developed by it, ‘acquire’ an independent status? As Judge Weeramantry said in his
dissenting opinion in the Lockerbie case, ‘[t]he entire law of the United Nations has
been built up around the notion of peace and the prevention of conflict’.518
Regrettably, the Court, by suggesting that there is ‘a rule (or set of rules) to be
henceforth treated separately from the provisions, especially those of an institu-
tional kind, to which it is subject on the treaty-law plane of the Charter’,519 impaired
the unity of the legal order the Charter had sought to establish.520
If the Charter, despite its claim to last eternally, were to lose legal force, it
would remain to be seen whether it would be replaced by a new constitution, or
whether international law would return to its pre-constitutional state. At any
rate, the continuity of the legal order would be interrupted. Even if rules pres-
ently being in force ‘remained’ valid, only their contents, but not the reason for
their validity, would remain the same. If there were a new constitution, it could
give validity to the norms in question; otherwise, the validity of these norms
would depend on their having been newly accepted by the members of the inter-
national community.521

515
See Arts. 38 and 43 of the 1969 Vienna Convention on the Law of Treaties.
516
The Court’s reasoning was clearly guided by its wish to adjudicate the dispute in spite of the
U.S. multilateral treaty reservation. From a constitutional point of view, however, a reservation
excluding jurisdiction over constitutional law of the international community cannot be re-
garded as admissible because it would prevent the Court from applying the very core principles
that community is based on. Art. 36(2) of the ICJ Statute must be interpreted accordingly.
In the case under discussion, the ICJ should have argued that the Charter, because of its consti-
tutional character, is not a ‘multilateral treaty’ in the meaning of the U.S. reservation.
517
Nicaragua, 1986 ICJ Rep. 96–97, para. 181.
518
1992 ICJ Rep. 70, 180.
519
Nicaragua, 1986 ICJ Rep. 100, para. 188.
520
For a criticism of the unpredictability of the applicable law resulting from the Court’s approach,
see Rosenne, Role of the ICJ (supra note 421), at 284.
As regards Art. 51 of the Charter, the provision in question, the Court conceded that ‘the
present content’ of the ‘inherent’ right of self-defense ‘has been confirmed and influenced by
the Charter’. Nicaragua, 1986 ICJ Rep. 94, para. 176. This qualification considerably limits the
‘separate existence’ claim quoted in the text.
521
See Kelsen, General Theory (supra note 26), at 117–18.
122 Chapter Five

‘Constitutional By-Laws’ of the International Community

Attributing constitutional quality to the Charter does not imply that other
international agreements concluded after 1945 cannot be of constitutional
importance too. Nor does it exclude the possibility of such an importance of
post-1945 rules existing in the form of customary law or general principles of
law.522 For instance, ‘world order treaties’523 like the two International Human
Rights Covenants or the Convention on the Prevention and Punishment of
Genocide are part of the constitutional foundation of the international com-
munity. However, we need to perform a closer examination along the lines of
my analysis of the Charter to ascertain the exact status of their provisions within
the framework of international constitutional law. Tentatively, I suggest that
these treaty and customary rules can be ascribed constitutional quality if, and
to the extent that, they characterize in detail, or further develop, the constitu-
tional law of the Charter. One could speak of ‘constitutional by-laws’ of the
international community because it is law of an accessory nature, adding to,
and implementing objectives of, the law of the Charter. It is also possible to use
the notion of a substantive constitution (as opposed to a formal or written one)
to describe that larger segment of a community’s legal order which encompasses
its key rules.524
From this it appears, first, that a repeal of Charter provisions by such later by-
laws is impossible. The rules in question would only pretend to have constitu-
tional quality; the law of the Charter would prevail.525 Second, there cannot be
constitutional treaty or customary law supplementing the Charter in areas where
the Charter has set out comprehensive rules that leave no room for additional
prescriptions. Here, Articles 108 and 109 of the Charter represent the only way
to introduce constitutional change beyond the range of interpretation. Such areas
include the functions and powers of the various organs established by the Charter.
Even silence of the Charter on a certain point may reflect a (negative) decision
rather than permission freely to regulate the question elsewhere.
The concept of ‘constitutional by-laws’ may better describe the relationship of
certain fundamental prescriptions developed since 1945 with the Charter than
that of ‘incorporation’. Although the latter notion explains well what happened
to rules of general international law that existed in 1945,526 one can hardly say
that since 1945 an incessant and indefinite process of incorporation is taking

522
See also Waldock, General Course (supra note 3), at 38.
523
For the term ‘world order treaty’, see Tomuschat, supra text accompanying note 190.
524
See supra ch. 1.
525
See explicitly Art. 103 of the Charter.
526
See supra text following note 510.
 Conceptual Distinctions 123

place before our eyes. Such terminology would rather obscure than illuminate the
phenomenon of key rules agreed upon after 1945 that were not included in the
text of the Charter.

Constitutional Law, Jus Cogens, and Obligations Erga Omnes

The realms of international constitutional law and jus cogens are only partially
identical. The two concepts have different origins and objectives. Constitutional
law can be described as the common denominator of the international commu-
nity.527 It is the body of rules and principles defining, in form and in substance,
the basis of the international community, and indicating the general course the
community has decided to steer. The constitution of the international commu-
nity, as embodied in the United Nations Charter, has a substantive part, in which
common values, goals and principles are set out, and a part relating to organiza-
tion and procedure which establishes the machinery necessary for carrying out
the substantive norms. It follows from their very nature that these rules can only
be amended by the constitutional community as such.528
Jus cogens, on the other hand, has been ‘authoritatively’ defined as a body of
norms ‘accepted and recognized by the international community of States as a
whole … from which no derogation is permitted and which can be modified only
by subsequent norm[s] of general international law having the same character’.529
This category of peremptory norms places a set of rules beyond the reach of states
when they, bilaterally or multilaterally, exercise their treaty-making function. As
such, its potential scope is wider than that of constitutional law. Theoretically,
any rule, not only a rule concerning the constitutional structure of the interna-
tional community, can be made a peremptory norm. However, at present the
number of rules that undisputedly have that jus cogens quality is much smaller
than that of constitutional rules.
But there is a partial overlap between jus cogens and constitutional law which
has often obscured the difference between both categories. The prohibitions of

527
See Tomuschat, International Law (supra note 177), at 89: ‘[t]he notion of an international
community living under a common constitution’.
528
See infra ch. 6, Constitutional Amendment.
529
See Art. 53 of the Vienna Convention on the Law of Treaties of 23 May 1969. For an instructive
overview of the concept of jus cogens, see Paul Reuter, Introduction to the Law of Treaties 142–46
( José Mico & Peter Haggenmacher eds., 1995). See further Robert Kolb, Théorie du ius cogens
international: Essai de relecture du concept (2001); Andreas L. Paulus, Jus Cogens in a Time of
Hegemony and Fragmentation: An Attempt at a Re-appraisal, 74 Nordic J. Int’l L. 297 (2005);
and The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga
Omnes (Christian Tomuschat & Jean-Marc Thouvenin eds., 2006).
124 Chapter Five

genocide, aggression, slavery and of trading in human beings, as well as the right
of peoples to self-determination belong to both classes of norms. Other constitu-
tional rules, like provisions on organization and procedure, are not peremptory
norms as defined by Article 53 of the Vienna Convention. They are, however,
similarly placed out of the reach of states in that they can only be amended fol-
lowing the procedure set out in Articles 108 and 109 of the Charter. It is, there-
fore, not the lack of capacity to commit the international community as a whole
which accounts for the fact that these procedural constitutional rules are not
‘peremptory norms’ as conceived by the Vienna Convention. Rather, jus cogens
has a specific purpose in comparison with constitutional law. According to Article
53 of the Vienna Convention and Article 103 of the Charter, respectively, a
breach of a rule of jus cogens or constitutional law leads to the same result, namely
the invalidity of the relevant agreement.530 If a new norm of jus cogens emerges,
any existing treaty which is in conflict with that norm becomes void.531 So too, an
obligation newly introduced into the Charter by way of amendment would pre-
vail over any conflicting obligation or (as has become clear in the Lockerbie case)
right of a state. At the same time, a peremptory norm as well as a constitutional
rule bar the development of a contravening rule of customary law.
In 1993, Professor E. Lauterpacht, acting as a judge ad hoc of the ICJ, addressed
the question of a possible collision of the priority status of Charter obligations
according to Article 103 with norms of jus cogens:
[T]he prohibition of genocide, unlike the matters covered by the Montreal
Convention in the Lockerbie case to which the terms of Article 103 could be directly

530
See [1976] Report of the ILC; [1996] 2 Y.B. Int’l L. Comm’n, pt. 2, at 86: ‘[I]t seems to the
Commission that the consequences of applying the principle stated in that Article [103] do …
relate … to the validity of certain treaty obligations. … As a result of the provision in Article
103, an obligation under an agreement in force between two States Members of the United
Nations, which is in conflict with an obligation under the Charter, becomes ineffective to the
extent of the conflict’ (emphasis added). See also I Oppenheim-Lauterpacht (8th ed.) (supra
note 444), at 896 (‘to the extent of their inconsistency with the Charter, all such agreements
are … void and unenforceable’); Henri Rolin, Les principes de droit international public, 77
Recueil des Cours 305, 434 (1950 II) (‘nullité absolue’); and Köck, UN-Satzung und allgemeines
Völkerrecht (supra note 115), at 89. For an analogous interpretation of Art. 20 of the Covenant
of the League of Nations (‘invalidity or unenforceability’, ‘nullity’), see H. Lauterpacht, The
Covenant as the ‘Higher Law’ (supra note 444), at 58, 63.
It is true that Art. 103 of the Charter only declares obligations under the Charter to ‘prevail’.
Kelsen, however, rightly said that ‘[i]f in case of two norms or, what amounts to the same, two
obligations inconsistent with each other, only one “prevails,” the other cannot be considered as
valid. … It may be that the term “prevail” instead of “abrogate” has been chosen to cover both
the invalidation by the Charter of inconsistent, preceding as well as subsequent, treaty-obligations’.
See Kelsen, Law of the U.N. (supra note 359), at 116.
531
See Art. 64 of the Vienna Convention.
 Conceptual Distinctions 125

applied, has generally been accepted as having the status not of an ordinary rule of
international law but of jus cogens … The relief which Article 103 of the Charter
may give the Security Council in case of conflict between one of its decisions and an
operative treaty obligation cannot – as a matter of simple hierarchy of norms –
extend to a conflict between a Security Council resolution and jus cogens.532
According to Article 103, however, obligations of states determined in decisions
of the Security Council only lawfully arise ‘under the present Charter’ if they are
in accordance with the constitutional law of the international community, includ-
ing the peremptory norms referred to above. It is only decisions consistent with
jus cogens that can create obligations under Article 103.533
There is also a partial substantive identity of constitutional law and obligations
erga omnes. (A related third concept, ‘international crimes of states’, which once
had been supported by the ILC,534 was eventually abandoned by the Commission
when it accepted the proposals of its Special Rapporteur, Professor James
Crawford.535) It is well known that the ICJ, in the Barcelona Traction case, identi-
fied the prohibitions of acts of aggression, and genocide, and the duties of states
concerning the basic rights of the human person, including protection from

532
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
& Herzegovina v. Yugo. (Serbia & Montenegro) ), Provisional Measures, 1993 ICJ Rep. 407,
440, para. 100 (Lauterpacht, J., sep. op.).
533
See Lockerbie, 1992 ICJ Rep. 64, 174 (Weeramantry, J., dissenting) (‘The powers of the Council
are subject to Articles 1 and 2 and, in particular, to the guarantees they provide of conformity
with international law’); and Oscar Schachter, The UN Legal Order: An Overview, in 1 United
Nations Legal Order (supra note 333), 1, 13 (‘The organs established by the Charter are subject
to the legal limitations expressly or impliedly laid down by that treaty’). See also Lockerbie,
1992 ICJ Rep. 101–02, 206–07, para. 23 (El-Kosheri, J., dissenting) (‘[T]he meaning of Article
25 is that the Members are obliged to carry out only those decisions which the Security Council
has taken in accordance with the Charter’ (quoting Kelsen, The Law of the United Nations, supra
note 359, at 95) ). The obligation of the Council to observe the rules of jus cogens is emphasized
by Alain Pellet, Peut-on et doit-on contrôler les actions du Conseil de sécurité? In Le Chapitre
VII de la Charte des Nations Unies: Colloque de Rennes 221, 236–37 (Société française pour le
droit international ed., 1995).
534
Art. 19(2) of the draft articles on state responsibility (pt. 1) adopted by the ILC on first reading
on 25 July 1980 defined an ‘international crime’ as follows: ‘An internationally wrongful act
which results from the breach by a State of an international obligation so essential for the protec-
tion of fundamental interests of the international community that its breach is recognized as a
crime by that community as a whole constitutes an international crime’. Report of the ILC, UN
General Assembly Official Records, Supp. No. 10, UN Doc. A/35/10 (1980), [1980] 2 Y.B.
Int’l L. Comm’n, pt. 2, 30, 32. For discussion, see International Crimes of States: A Critical
Analysis of the ILC’s Draft Article 19 on State Responsibility (Joseph H.H. Weiler et al. eds., 1989),
and de Hoogh, Obligations Erga Omnes and International Crimes (supra note 317).
535
See Crawford, The International Law Commission’s Articles (supra note 508), at 16–20, and id.,
Multilateral Rights and Obligations (supra note 5), at 467–77.
126 Chapter Five

slavery and racial discrimination, as such obligations ‘towards the international

community as a whole’.536 The first of these prohibitions is directly pronounced
in the Charter (Article 2, paragraph 4); the others are based on the Charter537 and
have been elaborated in treaties which have the character of ‘constitutional by-
laws’ of the international community. In its judgment in the East Timor case, the
Court added the right of peoples to self-determination, ‘as it evolved from the
Charter and from United Nations practice’, to its list of norms possessing erga
omnes character.538 The principle of self-determination was already referred to in
the Charter,539 and was defined as a right in Article 1 of the two International
Human Rights Covenants of 1966.
In principle every constitutional rule has an erga omnes effect in the sense that
it is directed towards, and binding on, all members of the international commu-
nity, and that all members have a legal interest in its observance by all other
members.540 But the specific obligations that are currently recognized as obliga-
tions erga omnes represent a subset of international constitutional law.541
Given that the most characteristic feature of these obligations is their rela-
tion to community values and interests, this is not astonishing.542 The category
of obligations erga omnes was advanced to give states who, according to tradi-
tional international law, were not affected by a breach of rules, ‘a legal interest

536
See Barcelona Traction, 1970 ICJ Rep. 3, 32, paras. 33–34.
537
See the preamble and Arts. 1(3), 13(1b), 55, 62(2), 68 and 76.
538
See East Timor (Port. v. Austl.), Judgment, 1995 ICJ Rep. 90, 102, para. 29. See also Application
of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, 1996 ICJ Rep. 595, 616, para. 31; Counter Claims, 1997 ICJ Rep. 243, 258, para.
35 (duties flowing from the Genocide Convention as obligations erga omnes). See further Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 ICJ Rep. 136, 199, paras. 155 and 157 (certain obligations of states under international
humanitarian law ‘are essentially of an erga omnes character’).
539
See Arts. 1(2) and 55. See also Arts. 73 and 76.
540
See Weller, Reality of the Emerging Universal Constitutional Order (supra note 47), at 52.
541
Cf. Tomuschat, International Law (supra note 177), at 87: ‘The essential premise must be the
recognition, as part of the constitution of the international community, of a number of rules
which protect basic values by different procedural mechanisms. The concept of jus cogens merely
identifies a specific consequence of a breach of a fundamental norm, to wit the invalidity of a
treaty conflicting with any such norm, and the concepts of erga omnes obligations and interna-
tional crimes denote other consequences of a specific type. It is not the substantive norms
themselves which are different, different is the assessment as to the response which should be
entailed by their violation. … In other words, in examining the régime of jus cogens, of obliga-
tions erga omnes or of international crimes one talks about secondary rules which come into
operation as a result of a breach of primary rules the identity of which must be clarified by other
methods’.
542
This feature led Professor Delbrück to aptly describe them as ‘public interest norms’. See Jost
Delbrück, Comments, in Allocation of Law Enforcement Authority (supra note 292), at 174, 194.
 Conceptual Distinctions 127

in their protection’.543 This way, pivotal community values should be safe-

guarded in the absence of community organs. As Judge Ago remarked, not
states individually but the international community is envisaged as having a
right to react to such serious forms of internationally wrongful acts.544
Recognizing the constitutional character of the Charter, which implies the
existence of effective organs of the international community, profoundly
changes that picture.545 It cannot now be held only in an abstract way that obli-
gations ‘are owed to the community’. The existence of community organs allows
us to speak of an organized entity possessing a right, as well as the actual ability,
to demand the performance of obligations erga omnes.546 However, for the time
being the individual states must still take part in ensuring compliance with the
rules in question. At present only the prohibition of aggression and grave and
wide-ranging violations of human rights can be enforced by a community
organ, the Security Council. Since the UN lacks standing before the ICJ, it is
also prevented from judicially charging a state with a violation of obligations
erga omnes. To that extent states perform, in an ancillary capacity, functions of
community organs; they act as agents of the international community ‘in the
public interest’.547 ‘In the Barcelona Traction case, … the message was conveyed

543
See Barcelona Traction, 1970 ICJ Rep. 32, para. 33.
544
See Roberto Ago, Obligations Erga Omnes and the International Community, in International
Crimes of States: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility 237, 238
( Joseph H.H. Weiler et al. eds., 1989). For discussion, see de Hoogh, Obligations Erga Omnes
(supra note 317), at 93–95.
545
For a specific reference to ‘the organized international community’, see South West Africa (Eth.
v. S. Afr.; Liber. v. S. Afr.), Judgment, 1966 ICJ Rep. 6, 467 (Padilla Nervo, J., diss. op.).
546
Though based on an assessment of specific legal interests of the UN, the same conclusion is ar-
rived at by de Hoogh, Obligations Erga Omnes (supra note 317), at 114–27.
547
See Jost Delbrück, The Impact of the Allocation of International Law Enforcement Authority
on the International Legal Order, in Allocation of Law Enforcement Authority (supra note 292),
at 135, 154. See also Philip Allott, Eunomia (1990), at 309–10, 418 (describing states as con-
stitutional organs of the international society). For an early expression of the principal-agent
idea, see Hans Kelsen, Principles of International Law 25 (1952): ‘The state which, authorized
by international law … , resorts to reprisals may be considered to be acting as an organ of the
international community constituted by international law. The enforcement action may be in-
terpreted as an action of this community, its reaction against a violation of international law’.
The regime of consequences of an international crime envisaged by the ILC in its earlier draft
articles on state responsibility was guided by the view that ‘apart from any collective response of
States through the organized international community … a … response to a crime is called for
on the part of all States’, to which therefore ‘injured State’ status was attributed (Article 40(3)
of the draft articles). See [1996] Report of the Int’l L. Comm’n, GAOR, Suppl. No. 10, UN
Doc. A/51/10, 121, 170. Cf., however, the more cautious approach adopted by the ILC in Arts.
48 and 54 of the Articles on State Responsibility of 2001 (supra note 453).
128 Chapter Five

that every state had a role to play as guardian of [the] core of the constitution
of the international community’.548
At any rate, the category of obligations erga omnes appears to be an interim
phenomenon in the process of constitutionalization of the international commu-
nity. The community has already been recognized as an owner of many rights,
without being able to enforce all of them. In a constitutional community fully
equipped with its own organs, the term ‘obligations erga communitatem’ will
replace a notion which emphasized the individual states’ authority to react to a
violation of community values.

548
Tomuschat, International Law (supra note 177), at 84.
Chapter 6
Consequences
The Charter is a living document, whose high principles still define the aspirations
of peoples everywhere for lives of peace, dignity and development.549
Kofi A. Annan

The question arises whether it is possible to deduce from the constitutional charac-
ter of the United Nations Charter any more specific consequences. Does a consti-
tutional understanding of the Charter give us answers to certain questions that we
otherwise would not get? I suggest that this is indeed the case. ‘Constitution’ is not
a magic word that, once pronounced, works miracles. But a perception of a legal
instrument as a constitution not only gives it a certain shape and contour but also
a claim to a normative importance which will produce certain results.550 In the fol-
lowing, I shall address some of them, without exhausting the legal consequences of
a constitutional perception of the Charter. In part, they relate to the Charter more
narrowly understood, for instance its interpretation and amendment, while others
pertain to the relationship between the Charter and other rules of international
law, i.e., the place of the Charter in the present international legal order. These
effects are indeed far-reaching. But they do not make the Charter the specter of an
all-embracing ‘world constitution’ that would control, or claim to control, every
aspect of international life as it is sometimes gloomily or fearfully imagined.551

549
Secretary-General Kofi A. Annan, Address presenting his annual report to the opening meeting
of the General Assembly, 20 Sep. 1999 (on file with author).
550
Words can be powerful, as Professor Isensee remarked about the relevance of calling the German
Länder ‘states’: ‘The name entails the substance. It brings together, intensifies and represents a
meaning. … The word as such is a political factor’. See Josef Isensee, Idee und Gestalt des
Föderalismus im Grundgesetz [The idea and form of federalism in the German Constitution],
in IV Handbuch des Staatsrechts der Bundesrepublik Deutschland 517, 554 (Josef Isensee &
Paul Kirchhof eds., 1990).
551
It is sometimes overlooked that classical constitutions of states also lack such an all-embracing
character: ‘The unity organized by the constitutional state only pertains to single functions and
relations, and not to the totality of social life or of a human person. … [The constitutional state]
is not a societas perfecta in the meaning of the writings of Aristotle and Saint Thomas Aquinas,
or an all-embracing entity that would integrate all aspects of life of its citizens …’ See Isensee,
Staat und Verfassung (supra note 82), at 48.
130 Chapter Six

The Charter as a Living Instrument

‘Constitutional law’, it has been said with reference to the Charter, ‘is a process as
well as a set of individual rules and decisions’.552 In general, the life of the Charter
can well be explained in terms of this procedural understanding of a constitution.
Referring to the Charter, an early commentator opined that ‘[c]onstitutions
always have to be interpreted and applied, and in the process they are overlaid
with precedents and conventions which change them after a time into something
very different from what anyone, with only the original text before him, could
possibly have foreseen’.553 Surely, such informal change is also not unknown to
statutory law or, in the sphere of international law, treaties when they have existed
for a longer period of time. But because of a constitution’s ‘claim to eternity’554
and the ensuing difficulty of formal change this quality is here especially
pronounced.
With good reason the UN was called a system ‘which is in constant movement,
not unlike a national constitution whose original texture will be unavoidably
modified by thick layers of political practice and jurisprudence’.555 By way of
example, one might mention the Uniting for Peace resolution of 1950,556 the
codification and development of Charter principles and rules by the General
Assembly (Universal Declaration of Human Rights of 1948, Resolution 1514
(XV) of 1960, ‘Friendly Relations Declaration’ of 1970, Charter of Economic
Rights and Duties of States of 1974, ‘Definition of Aggression’ of 1974), the
expansion of the concept of international peace and security in the practice of the
Security Council, the invention of peacekeeping operations, the good offices
function performed by the Secretary-General,557 and the development of proce-
dures of monitoring the observation of human rights by states.
This is not to say that any deviation from the text of the Charter can be justi-
fied by understanding the instrument as a constitution.558 Quite the opposite

552
See Warbrick, The Principle of Sovereign Equality (supra note 482), at 212.
553
Brierly, The Covenant and the Charter, 23 Brit. Y.B. Int’l L. 83 (1946). See also Waldock,
General Course (supra note 3), at 26.
554
See supra ch. 4, Constitutional Characteristics of the UN Charter: ‘Eternity’ and Amendment.
555
See Tomuschat, Obligations for States (supra note 176), at 251–52.
556
See W. Michael Reisman, Living with the Majority, in The Nation, 1 Feb. 1975, 102, reprinted
in McDougal & Reisman, International Law in Contemporary Perspective (supra note 131), 119,
120: ‘ “Uniting for Peace” was an extraordinary attempt at constitutional change within the
United Nations … Though a radical amendment of the Charter, it was in effect confirmed by
the International Court as consistent with the principles of the Charter’.
557
See Franck & Nolte (supra note 415).
558
For a sharp criticism of several practices which the author regards as violations of the Charter
and of ‘the constitutional foundations on which the Charter … [is] based’, see Yehuda Z. Blum,
 Consequences 131

is true.559 Nor is it suggested that all of the developments mentioned above have
taken place in accordance with the Charter. Only a thorough review of each par-
ticular modification could prove its constitutionality or unconstitutionality.
As it is a general principle of any constitutional system of governance that the
exercise of power shall be guided and confined by law, a constitutional view of the
Charter requires adequate mechanisms to ensure the constitutionality of the con-
duct of the organs established by the Charter. The right of veto of the permanent
members of the Security Council can be understood as such a constitutional
device of ‘checks and balances’.560

Constitutional Interpretation

A constitution, I argue, typically emancipates itself from the forces that brought
it about. To use Judge Álvarez’ wonderful metaphor, constitutions ‘can be com-
pared to ships which leave the yards in which they have been built, and sail away
independently, no longer attached to the dockyard’.561 Hence, an interpretation
based on the original will or intent of the constitutional founders (‘static-subjective
interpretation’) is inappropriate. Such an approach would unduly subject the
present and the future to whatever a bygone generation declared to be the law,
and this would impede the solution of contemporary problems. Instead, an inter-
pretation of the Charter as a constitution must aim to establish, at the time of
interpretation, its objective meaning in the light of the concrete circumstances
of the case in question, thus taking account of the dynamic character and inher-
ent incompleteness of any constitution (‘dynamic-evolutionary’ or ‘objective

Eroding the United Nations Charter (1993). See also Gross, On the Degradation of the
Constitutional Environment of the UN (supra note 501) (criticizing the practice of ‘[m]anipu-
lating [the UN Charter] in order selectively to punish unpopular member states’).
559
See infra, Constitutional Amendment.
560
See Fassbender, UN Security Council Reform (supra note 29), at 307 et seq.
561
Reservations to the Genocide Convention, Adv. Op., 1951 ICJ Rep. 15, 53 (Álvarez, J., dissent-
ing). See also Competence of Assembly Regarding Admission to the United Nations, Adv. Op.,
1950 ICJ Rep. 4, 18 (Álvarez, J., dissenting), and Admission of a State to the United Nations,
Adv. Op., 1947–48 ICJ Rep. 57, 68 (Álvarez, J., indiv. op.): ‘[T]he fact should be stressed
that an institution, once established, acquires a life of its own, independent of the elements
which have given birth to it, and it must develop, not in accordance with the views of those
who created it, but in accordance with the requirements of international life’. See also René-
Jean Dupuy, La Communauté internationale (supra note 281), at 81: ‘L’organisation dépasse les
prévisions de ses créateurs; elle répond aux besoins qu’ils éprouvaient et pour la satisfaction
desquels ils l’ont instaurée, mais elle en crée elle-même de nouveaux par son dynamisme
fonctionnel’.
132 Chapter Six

interpretation’).562 As the International Court of Justice declared in its 1971 advi-

sory opinion on Namibia,
the concepts embodied in Article 22 of the Covenant [of the League of Nations] …
were not static, but were by definition evolutionary. … [The Court’s] interpretation
cannot remain unaffected by the subsequent development of law, through the
Charter of the United Nations and by way of customary law. Moreover, an interna-
tional instrument has to be interpreted and applied within the framework of the
entire legal system prevailing at the time of the interpretation.563
In his dissenting opinion in the South West Africa cases of 1966, Judge Jessup said:
‘The law can never be oblivious to the changes in life, circumstance and commu-
nity standards in which it functions. Treaties – especially multipartite treaties of a
constitutional or legislative character – cannot have an absolutely immutable
character’.564
Consequently, the starting-point for an interpretation of the Charter is the text
as a manifestation ‘of what is objectively laid down in the Charter (as a “constitu-
tion”)’.565 Just as it was said about the U.S. Constitution, ‘constitutional interpre-
tation begins with the document itself. The plain fact is, it exists. It is something
that has been written down’.566 Besides the linguistic-grammatical and the sys-
tematic interpretation, the latter determining the place of a provision ‘in the
general structure and scheme of the Charter’,567 teleological interpretation is of
special significance. It gives weight to the object and purpose of a particular
Charter rule and the Charter as a whole.
The travaux préparatoires will only be considered in exceptional circumstances.568
The idea – prominent in U.S. legal doctrine – that the ‘original intent’ of the

562
See Ress, Interpretation of the Charter (supra note 115), at 23–25. See also Ervin P. Hexner,
Teleological Interpretation of Basic Instruments of Public International Organizations, in Essays
in Honor of Hans Kelsen 119 (Salo Engel & Rudolf A. Métall eds., 1964).
563
Namibia (South West Africa), Adv. Op., 1971 ICJ Rep. 16, 31, para. 53.
564
1966 ICJ Rep. 325, 439 (Jessup, J., dissenting). For a critique of the assumption ‘that words
have an “absolute” meaning, independent of their users and interpreters and independent of
objectives and contexts’, see McDougal, International Law, Power, and Policy (supra note 130),
at 151–54.
565
See Ress, Interpretation of the Charter (supra note 115), at 19.
566
See Edwin Meese III, Interpreting the Constitution, in Interpreting the Constitution (supra note
70), 13, 15 (originally published in 1986).
567
See Certain Expenses of the UN, Adv. Op., 1962 ICJ Rep. 151, 162; see also ibid. at 167.
568
See Ress, Interpretation of the Charter (supra note 115), at 26 et seq.: ‘Even though recourse to
subjective elements (original intentions of the founding states) poses difficulties in the case of
the Charter and is not appropriate for organizations that are aimed at a longer period of time
and that develop in an evolutionary manner, it is nonetheless not absolutely precluded and, as
is illustrated by the interpretation of Art. 27(3), it may even be of fundamental importance’.
 Consequences 133

‘Founding Fathers’ should be decisive in constitutional interpretation569 has not

met with a favorable reception in international constitutional thought. Professor
Rosenne described the ‘lack of interest in the intentions of the original members
[of the United Nations] with corresponding disinterest in the travaux prépara-
toires’ as a characteristic element of a constitutionalist Charter interpretation.570
It is through teleological interpretation of constituent treaties of international
organizations that implied powers are established. It is well known that the
implied powers doctrine originated in the Reparation for Injuries advisory opinion
of the ICJ according to which ‘the Organization must be deemed to have those
powers which, though not expressly provided in the Charter, are conferred upon
it by necessary implication as being essential to the performance of its duties’.571
Determining the powers that complete or supplement those expressly defined in
the Charter is an indispensable method of constitutional development.
Nevertheless, it has to be practiced with caution. Notwithstanding the growth of
the welfare state in the twentieth century and the corresponding expansion of
governmental rights of intervention in the private sphere of citizens, the idea
of ‘limited government’ is still inherent in the notion of constitution. The Tenth
Amendment to the U.S. Constitution provides that the powers not delegated to
the United States by the Constitution are reserved to the States or the People,
respectively.572 In a similar way, the members of the international community
have only bestowed a limited number of rights and responsibilities on that body.
As the International Court of Justice emphasized in its Certain Expenses opinion,
the ‘purposes [of the United Nations] are broad indeed, but neither they nor the
powers conferred to effectuate them are unlimited. Save as they have entrusted
the Organization with the attainment of these common ends, the Member States
retain their freedom of action’.573

569
See the essays reprinted in Interpreting the Constitution: The Debate over Original Intent (supra
note 70). For the respective discussion in Germany, see Hans-Peter Schneider, Der Wille des
Verfassunggebers: Zur Bedeutung genetischer und historischer Argumente für die
Verfassungsinterpretation, in Festschrift für Klaus Stern 903 (Joachim Burmeister ed., 1997).
570
See Rosenne, Developments in the Law of Treaties (supra note 16), at 237.
571
Reparation for Injuries Suffered in the Service of the United Nations, Adv. Op., 1949 ICJ Rep. 174,
182. See also Effect of Awards of Compensation, Adv. Op., 1954 ICJ Rep. 47, 56; ibid. at 76,
80–81 (Hackworth, J., dissenting); Certain Expenses of the United Nations, 1962 ICJ Rep. 151,
167, and ibid. at 198, 208, 213 (Fitzmaurice, J., sep. op.). Cf. Bardo Fassbender, Die
Völkerrechtssubjektivität internationaler Organisationen, 37 Aus. J. Pub. & Int’l L. 17, 25–27 et
passim (1986) (with a summary in English).
572
A federation, James Bryce wrote, ‘almost necessarily implies a Rigid Constitution’, ‘for the com-
ponent communities which are so uniting will of course desire that the rights of each shall be
safeguarded’. Bryce, Constitutions 45, 52, 86 (1905).
573
Certain Expenses of the United Nations, 1962 ICJ Rep. 168.
134 Chapter Six

Of course ‘[t]he rule of interpretation according to which limitations of a

party’s sovereignty are not to be presumed already faces extensive restrictions …
in the case of international organizations’.574 This assumption is in line with the
increasingly weak condition of the notion of sovereignty that I noted above.575 It
is not so much the principle of sovereignty of states but constitutionalism which
requires us to recognize that the UN has only been furnished with a limited
number of rights and responsibilities. Only in exceptional cases, in which the
performance of the Organization’s most essential tasks is at stake, can one have
recourse to the idea of implied powers. In the normal life of the international
community, it is up to its members to amend the Charter in order to provide the
community organs with the powers proportionate to their tasks.
The international legal community is made up of all subjects of international
law—sovereign states, states enjoying a limited international legal personality,
intergovernmental organizations, peoples and minorities, belligerent parties,
individuals, as well as special entities like the Holy See.576 This is what Judge
Mosler called the ‘international legal community in its wider meaning’; it includes
everybody ‘endowed with the capacity to take part in international legal rela-
tions’.577 All these legal persons are entitled to participate in the interpretation of
the Charter; they constitute the respective ‘interpretive community’.578 As long as
‘sovereign’ states are in possession of the most substantial rights conferred by the
international legal order, their views are particularly momentous. Nevertheless,
the opinions of other community members are significant for the interpretation
of rules which affect them in a special way. Human rights, for instance, cannot be

574
Ress, Interpretation of the Charter (supra note 115), at 15.
575
See supra ch. 4, Universality and the Problem of Sovereignty.
576
For a recent overview, see Christian Walter, Subjects of International Law, in The Max Planck
Encyclopedia of Public International Law, Oxford University Press, 2008, online edition.
577
See Hermann Mosler, International Legal Community’, II Encycl. Pub. Int’l L. 1251, 1252
(1995). For the view of the New Haven School, which rejects the ‘technical conception of the
“subjects of international law” ’ and insists on a ‘comprehensive description of the participants
in the world power process’ (among them transnational political parties, pressure groups and
private organizations and, as ‘the ultimate actor in all arenas and on the world scene’, the indi-
vidual human being), see McDougal, International Law, Power, and Policy (supra note 130), at
160–62.
578
For a general description of this notion, see Vagts, Treaty Interpretation (supra note 23), at
480–81. See also Peter Häberle, Die offene Gesellschaft der Verfassungsinterpreten: Ein Beitrag
zur pluralistischen und ‘prozessualen’ Verfassungsinterpretation, 30 Juristenzeitung 297, 299
(1975), reprinted in Häberle, Verfassung als öffentlicher Prozess (supra note 45), at 155, 157:
‘Everybody living under conditions governed by a rule is, directly or indirectly, an interpreter of
that rule. … All parts and powers of a political community may and do interpret its
constitution’.
 Consequences 135

properly interpreted without taking due account of the views of individuals and
their (non-governmental) organizations.
The interpretive method outlined here leaves ample room for constitutional
adaptation. In both treaty and constitutional law, the last century saw an advance
of the dynamic-evolutionary method of interpretation over the once almost
undisputed static or textual approach. This advance has resulted in a convergence
of prevailing methods of treaty and constitutional interpretation.579 If the word
‘treaty’ is replaced with ‘UN Charter’, Article 31, paragraph 1, of the Vienna
Convention on the Law of Treaties correctly describes the interpretive technique
to be followed: ‘The UN Charter shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the Charter in their context
and in the light of its object and purpose’. However, saying that Article 31(1) is
setting forth rules applicable to the interpretation of the Charter is not to say that
the same is true for the other paragraphs of the article. As a constitution, the
Charter has acquired a life of its own. ‘[Its] purpose constitutes an element of
such a predominant weight for the exercise of interpretation that the will of the
parties is derogated to an almost subsidiary means of interpretation’.580
Interpretation of the Charter is a task of the international legal community at
large. But since the Charter is mainly interpreted in the day-to-day process of its
application, the relevant work of UN organs carries special weight.581 The com-
munity has established these constitutional organs and entrusted them with the
task of applying the provisions of the Charter. From this responsibility, they inev-
itably derive the power of interpretation.582 This interpretation, which must con-
sider the views of all members of the international community, is not ‘authoritative’
or ‘authentic’ in the sense that it cannot be challenged. It can, of course, be right
or wrong, and the community must strive to correct a wrong interpretive decision
by making use of the respective – presently rather limited – constitutional means.

579
The practice of the U.S. Supreme Court in interpreting the Constitution has been described as
follows: ‘[C]ases tend to follow a hierarchy of indicia, starting, as does the Vienna Convention,
with the ordinary meaning and moving to evidence of intent and historical meaning, and then
to teleology’. Vagts, Treaty Interpretation (supra note 23), at 493.
580
Ress, Interpretation of the Charter (supra note 115), at 15.
581
See Report of Subcommittee B of Committee IV/2 of the San Francisco Conference, 2 June
1945, reprinted in The United Nations Conference on International Organization: Selected
Documents 879–80 (U.S. Department of State ed., 1946). See also Louis B. Sohn, The UN
System as Authoritative Interpreter of its Law, in 1 United Nations Legal Order (supra note 333),
at 169, 171–74.
582
See Competence of the General Assembly, 1950 ICJ Rep. 4, 15 (Álvarez, J., dissenting): ‘Legal
texts can be interpreted by anyone; but when such an interpretation is made by an authorized
organ, such as the General Assembly of the United Nations or the International Court of Justice,
it presents a great practical value and creates precedents’.
136 Chapter Six

From this it follows that interpretation engaged in by UN organs is not based on

‘agreement’ or ‘consensus of all member states’, or at least ‘the member states
“concerned” ’, in the way Article 31, paragraph 3(b) of the Vienna Convention
speaks of ‘subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation’. Rather, the practice of
the UN organs has gained significance for the interpretation of the Charter
because of their status in the constitutional framework of the international com-
munity. The ICJ shared this view when it held that ‘[t]he organs to which Article
4 entrusts the judgment of the Organization … have consistently interpreted the
text … .’583 The Court referred to the organs of the UN, not its member states.

Constitutional Amendment

Every constitution presents the difficult problem of distinguishing interpretation

and adaptation, progressive development and amendment. All these are different
forms, or degrees, of constitutional change. While it is evident that every ‘living
document’ experiences change and must, to some extent, embrace it in order not
to become a dead letter irrelevant to the present, a constitution nevertheless has
to channel and limit the process of transformation. It is one of the main purposes
of a written constitution to ensure a higher degree of certainty within the law
than that prevailing in a system of customary rules. The international commu-
nity, in particular, with its complicated history, heterogeneous subjects and actors
can benefit enormously from an instrument clearly setting out the rights and
duties of its members.
Do Articles 108 and 109 of the UN Charter set up an exclusive régime for
Charter amendments so that the Charter can only be amended in the ways pro-
vided therein? The text of the provisions supports such a view.584 Article 108 begins

583
Competence of the General Assembly, 1950 ICJ Rep. at 9.
584
Arts. 39–41 of the 1969 Vienna Convention on the Law of Treaties are concerned with the
‘Amendment and Modification of Treaties’. What do these rules mean for the question of
Charter amendment? The Vienna Convention ‘applies to any treaty which is the constituent
instrument of an international organization’ (Art. 5). Not being retroactive (Art. 4), the
Convention as such (which was concluded in 1969 and entered into force in 1980) does not
apply to the UN Charter. However, as the ICJ stated (see Namibia (South West Africa), 1971 ICJ
Rep. 16, 47, and Fisheries Jurisdiction, 1973 ICJ Rep. 3, 18), the provisions laid down in the
Convention can ‘in many respects be considered as a codification of existing customary law’.
Art. 41 of the Convention sets out rules about ‘agreements to modify multilateral treaties
between certain of the parties only’. In the case of the Charter, such modifications are already
precluded by its Art. 103. Therefore, they are ‘prohibited by the treaty’ (see Art. 41(1)(b) of the
Convention). Moreover, ‘the very existence of Art. 108 [of the Charter] is an argument against
 Consequences 137

with the words ‘Amendments to the present Charter shall come into force …’, and
Article 109, paragraph 2 provides that ‘[a]ny alteration of the present Charter …
shall take effect when …’. This leaves no room for other procedures of Charter
amendment. The clauses were ‘supposed to reconcile the conflicting demands of
flexibility and stability’,585 and there is no indication that the founding members,
in particular the major powers, were prepared to relativize the effect of a compro-
mise whose achievement had been difficult enough.
Because of the antagonism between East and West, which made it extremely
difficult to comply with the requirements set out in Articles 108 and 109,
however, member states eventually applied to the Charter the general rule of
treaty amendment which Article 39 of the Vienna Convention phrased as fol-
lows: ‘A treaty may be amended by agreement between the parties’—that is, also
by tacit agreement or a customary rule resulting from an opinio juris and a cor-
responding practice. The ICJ approved of this concept of informal Charter modi-
fication in its 1971 advisory opinion on Namibia. The Court held that ‘[t]his
procedure followed by the Security Council’ – i.e., the practice according to which,
contrary to the wording of Article 27, paragraph 3 of the Charter, abstention or
absence on the part of one of the permanent members does not hinder the adop-
tion of a Security Council resolution – ‘which has continued unchanged after
the amendment in 1965 of Article 27 of the Charter, has been generally accepted
by Members of the United Nations and evidences a general practice of that
Organization’.586

inter se modification, for its very essence is to guarantee a uniform Charter regime’ (Karl et al.,
Comment on Art. 108 [supra note 389], at 1346; see also Kelsen, The Law of the U.N. [supra
note 359], at 113.) Modifications of the Charter agreed upon by only some member states
would also directly contradict the idea of a constitution (in particular, its universal character).
As a lex specialis, Art. 40(1) of the Convention stipulates that ‘[u]nless the treaty otherwise
provides, the amendment of multilateral treaties shall be governed by the following paragraphs’
(emphasis added). The Charter does, of course, otherwise provide (Arts. 108 and 109). The
customary law of treaties, as reflected in the Vienna Convention, therefore refers back to the
Charter. This result is in accordance with my observations on the relationship between the
Charter and ‘general international law’ which emphasized the precedence the Charter takes over
all other norms of international law (see supra ch. 5, Constitutional Law and ‘General International
Law’ ).
585
See Karl et al., Comment on Art. 108 (supra note 389), at 1343.
586
Namibia (South West Africa), 1971 ICJ Rep. 16, 22, para. 22. But see Certain Expenses of the
United Nations, 1962 ICJ Rep. at 182, 191 (Spender, J., sep. op.): ‘[Subsequent conduct by all
parties to a multilateral treaty] may … provide evidence from which to infer a new agreement
with new rights and obligations between the parties, in effect superimposed or based upon the
text of the treaty and amending the same. This latter aspect of subsequent conduct is irrelevant
for present consideration since no amendment of the Charter may occur except pursuant to Article
108 of the Charter’. (Emphasis added.)
138 Chapter Six

To license informal amendments, however, is to generate a grey area in which

the border between law and no-more-law, and law and not-yet-law becomes
blurred.587 Such indeterminacy is especially problematic in a legal community
without a centralized system of authoritative constitutional interpretation.
Articles 108 and 109 of the Charter, which are modelled on similar provisions of
national constitutions,588 set out precise procedures for amending the Charter.
They define participants, necessary majorities and the point in time at which an
amendment comes into force. All these elements of amendment remain in doubt
in the case of ‘informal’ amendments. Is it necessary that all UN member states
support such an amendment, at least by way of acquiescence or estoppel?589 Or
can one apply by analogy Articles 108 and 109 so that the Charter can be amended
by a practice supported by two-thirds of the member states, including the five
permanent members of the Security Council?590 Must there be, in addition to an
acceptance by the member states, a ‘general practice’ of the Organization,591 and
what would be the requirements of such a practice? May an informal amendment
‘be legally repudiated in a given case by invoking the text of the Charter’, as Judge
Bustamante y Rivero opined in the Certain Expenses case?592
Furthermore, a constitutional view of the Charter requires the participation
of the international legal community at large in Charter amendments. While

587
See also Hesse, Grundzüge (supra note 46), at 18–19, 29 (arguing that a constitutional amend-
ment cannot be effected by interpretation or practice: ‘This limit is a necessary condition for the
rationalizing, stabilizing and controlling function of a constitution’).
588
See, in particular, Art. V of the U.S. Constitution.
589
See Karl et al., Comment on Art. 108 (supra note 389), at 1346.
590
See Michael Akehurst, The Hierarchy of the Sources of International Law, 47 Brit. Y.B. Int’l L.
273, 277–78: ‘Subsequent practice often modifies the constituent treaties of international or-
ganizations. Some authorities maintain that such modifications need the consent of all member
States of the organization; others argue that a majority is sufficient. The true solution would ap-
pear to be to apply by analogy any amendment clause which exists in the constituent treaty; thus, the
United Nations Charter can be amended by a practice supported by two-thirds of the member
States, including the five permanent members of the Security Council’ (emphasis added). See
also Bruno Simma, Stefan Brunner & Hans-Peter Kaul, Comment on Art. 27, in I The Charter
of the United Nations (supra note 115), at 476, 497: ‘[T]he majority required for formal amend-
ments … may also amend the Charter informally by spontaneous agreement’.
591
See supra note 586.
592
See Certain Expenses of the United Nations, 1962 ICJ Rep. 288, 291 (Bustamente y Rivero, J.,
dissenting): ‘It is already well known that an unwritten amendment to the Charter has taken
place in the practice of the Security Council, namely, to the effect that the abstention of a per-
manent Member present at a meeting is not assimilated to the exercise of the right to veto. No
doubt this type of amendment may be legally repudiated in a given case by invoking the text of the
Charter (Art. 27, para. 3), since no permanent Member has undertaken to apply it without
reservations …’ (emphasis added).
 Consequences 139

(UN member) states are presently the only community members entitled to cast
their vote, they nevertheless must take account of the views of the other mem-
bers, especially in matters of particular concern to such members. A free and
open discussion of the constitutional issues is necessary to enable these actors to
form, clarify, and voice their opinions.
The question of amendment highlights the distinguishing quality of a consti-
tution (even if it was created by way of a treaty) as compared to a typical, or
ordinary, international treaty which is central to my argument.593 If the parties
agree, such a treaty may be amended by a customary rule even if the text of
the treaty says otherwise. The law of treaties does not prevent the parties from
amending an amendment clause in any way they like. A constitution, in contrast,
establishes institutions which by their very nature can only act under, and accord-
ing to, the constitution which has given life to them. By adopting the constitu-
tion, the members of the respective community place themselves under
its protection, and accept the corresponding restrictions. Henceforth, their capac-
ity in constitutional matters is limited to the role assigned to them by the
constitution.
I conclude that the Charter, as the constitution of the international commu-
nity, can only be amended in the procedures provided for in Articles 108 and
109. ‘A constitution is no soil for customary law’.594
Can constitutional law that is not laid down expressis verbis in the Charter be
amended?595 Constitutional law incorporated by the Charter in 1945 can be
amended in the procedure provided for in Articles 108 and 109. To change that
law, no other procedure is admissible. However, to the extent that, under the reign
of the Charter, constitutional rules have been concretized in special treaties, they
can be amended according to the relevant rules of the treaties. So too, customary
rules of constitutional rank which have been generated since 1945 in accordance
with the Charter cannot mandatorily be subjected to its amendment procedure.
The same holds true for the constitutional law of the ‘world order treaties’596

593
See supra ch. 3, The Traditional Dichotomy between ‘The International’ and ‘The Constitutional’.
594
Christian Tomuschat, Verfassungsgewohnheitsrecht? Eine Untersuchung zum Staatsrecht der
Bundesrepublik Deutschland 144 (1972). See also Jean-Paul Jacqué, La Constitution de la
Communauté Européenne, 7 Revue universelle des droits de l’homme 397, 403 (1995): ‘Le carac-
tére constitutionnel des traités se manifeste essentiellement dans l’exclusion du jeu des règles de
droit international en ce qui concerne la révision des traités. … Un fort courant exclut toute
révision coutumière des constitutions écrites en s’appuyant sur l’idée que les auteurs de la con-
stitution, lorsqu’ils ont prévu un mode spécifique de révision, ont entendu exclure tout recours
à la coutume constitutionnelle’.
595
See supra ch. 5, Constitutional Law and ‘General International Law’ and ‘Constitutional By-Laws’
of the International Community.
596
See supra text accompanying notes 190 and 523.
140 Chapter Six

concluded under the legal umbrella of the Charter. They can be amended accord-
ing to their own rules. If, however, a (formal) amendment to the Charter were to
lead to a conflict between an earlier extra-Charter constitutional rule and the
amended Charter, the latter would prevail (Article 103 of the Charter).
Article 53 of the Vienna Convention on the Law of Treaties defines a norm of
jus cogens as one ‘accepted and recognized by the international community of
States as a whole … which can be modified only by a subsequent norm of general
international law having the same character’. As constitutional law-making is a
perfect expression of the general will of the international community, jus cogens
may be created and modified through Charter amendment, regardless of whether
the norm in question is presently pronounced in the Charter or not.597
Furthermore, it is desirable that the Charter, as a constitution, pictures as com-
pletely as possible the constitutional law presently in force. The procedure of
Articles 108 and 109 can be used to supplement the text of the Charter with rules
already belonging to the body of constitutional law of the international
community.
A number of constitutions, particularly those of European states, declare some
of their provisions to be unamendable.598 The respective constituent powers
regarded them as so pivotal to their conception of the constitution that they sim-
ply prohibited their amendment. If a people wants to do away with these provi-
sions, it has to establish an altogether new constitution (something it always has
the power to do). In that case, however, there is no identity of the old and the new
constitutional régime.
The most prominent example of such an effort to make future generations
honor certain constitutional values and institutions is, perhaps, Article 79, para-
graph 3 of the (West) German Constitution of 1949.599 The paragraph, which
was not changed after the reunification of Germany in 1990, was written against
the backdrop of the experience of the Weimar Constitution of 1919 which had

597
For the relationship between jus cogens and constitutional law, see supra ch. 5, Constitutional
Law, Jus Cogens, and Obligations Erga Omnes.
598
For a comparative survey, see Peter Häberle, Verfassungsrechtliche Ewigkeitsklauseln als verfas-
sungsstaatliche Identitätsgarantien, in id., Rechtsvergleichung (supra note 223), at 597. See also
Hans-Ulrich Evers, Comment on Art. 79(3) of the Basic Law (1982), in Bonner Kommentar
zum Grundgesetz, paras. 23–35 (Rudolf Dolzer et al. eds.).
599
In translation, Art. 79(3) reads as follows: ‘Amendments to this Basic Law affecting the division
of the Federation into Länder, the participation on principle of the Länder in the legislative
process of the Federation, or the principles laid down in Articles 1 and 20 shall be inadmissible’.
Art. 1, on its part, mainly protects human dignity and declares the fundamental rights listed in
the following articles to be law directly binding on the legislative, executive and judicial powers.
Art. 20 describes, inter alia, Germany as a ‘democratic and social federal state’ and sets out that
‘all state authority is derived from the people’.
 Consequences 141

made it easy for Hitler to establish his dictatorship in 1933 under the guise of
constitutional legitimacy.600 But the Grundgesetz was not the first constitution to
tread such a path. Article 112, paragraph 1 of the Constitution of Norway of
1814, which is still in force, states that an amendment ‘must never contradict
the principles embodied in this Constitution, but solely relate to modifications
of particular provisions which do not alter the spirit of the Constitution’.
Similar provisions were adopted by the constitutions of Ecuador (1861) and
Greece (1864).
Peter Häberle distinguished the following two types of Ewigkeitsklauseln, or
‘eternity clauses’: (1) clauses protecting the ‘spirit’ of a constitution, i.e., its fun-
damental principles, and (2) clauses protecting certain specified principles (for
instance, the republican form of government, human rights, the separation of
powers, or federalism). There has been a gradual expansion of the scope of consti-
tutional features thus protected. Today, democracy, human dignity and human
rights are commonly regarded as the foundation of constitutionalism which may
not be altered.601 Many constitutions past and present have copied the guarantee
of the republican form of government inserted in the French Constitution of
1875 in 1884.602 These include the constitutions of Brazil (1891), Portugal
(1911), China (1923), Turkey (1924 and 1961), Italy (1947), and France (1958).
A comprehensive catalogue of prohibitions is set out in Article 110, paragraph 1
of the Greek Constitution of 1975 and Article 288 (ex-Art. 290) of the
Constitution of Portugal of 1976.603 Similarly, Article 4 of the Turkish Constitution
of 1982 makes the essence of the constitution unamendable. The constitutions of
the Republic of Korea of 1948 (as revised in 1954) and of 1960 (Article 98) pro-
vided that, inter alia, the form of government and the principle of the sovereignty
of the people could not be changed. Although the present South Korean constitu-
tion lacks a respective provision, the existence of substantive limits of the power
of constitutional amendment is generally acknowledged.604 The same is true for
Japan where most scholars believe that the fundamental principles of the consti-
tution (popular sovereignty, fundamental rights, and pacifism)605 cannot be
changed through the process of amending the constitution as determined in

600
See, e.g., Gordon A. Craig, Germany 1866–1945, at 577 et seq. (1981).
601
See Häberle, Ewigkeitsklauseln (supra note 598), at 600–09.
602
The French provision read as follows: ‘La forme républicaine du gouvernement ne peut faire
l’objet d’une proposition de révision’.
603
See Grewe & Ruiz Fabri, Droits constitutionnels européens (supra note 34), at 58 et seq.
604
See Bongkun Kal, Der Einfluss der Grundgesetzes auf koreanisches Verfassungsrecht, in 40
Jahre Grundgesetz: Entstehung, Bewährung und Internationale Ausstrahlung 299, 310 (Klaus Stern
ed., 1990).
605
See the preamble and arts. 1, 9, 11 and 97 of the Constitution of Japan.
142 Chapter Six

Article 96.606 A progressive and probably so far unique ‘eternity clause’, which
protects rules of international law, can be found in the Swiss Constitution of
1999: Articles 193 and 194 about the complete or partial revision of the
Constitution say that such revisions ‘may not violate the peremptory norms of
international law’.607
Following two decisions of the European Court of Justice,608 it was discussed
whether there are substantive limits on the power of member states of the European
Communities to amend the founding treaties. Some argued that the existence of
such limits would suggest a development of an independent community system,
the basics of which are no longer within the member states’ reach.609 Professor
Herdegen has come to the conclusion that, inter alia, an amendment abolishing
the European Parliament or the European Court of Justice would be inadmissi-
ble.610 Behind this question is the unresolved problem of where the constitutional
authority resides in the European Union. Is there a European constituent power
that is not merely derivative of national constituent power(s)?611
In Germany, the restrictions imposed by Article 79, paragraph 3 of the Basic
Law on the power of the legislative bodies to amend the constitution are generally
attributed to the influence of Carl Schmitt’s thoughts.612 However, it is actually

606
This information was kindly provided by Professor Norikazu Kawagishi (Waseda University,
Tokyo).
607
See also U.S. Const. art. V in fine: ‘Provided that … no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate’. This provision makes the constitution, as James
Bryce said, ‘in one respect virtually, if not technically, unchangeable’. See Bryce, Constitutions 5
(1905). For a possible application of the German concept to the US Constitution, see Ackerman,
We the People (supra note 355), at 15, 320–21.
608
See Case 1/91, Opinion Delivered Pursuant to the Second Subparagraph of Article 228(1) of
the EEC Treaty, 1991 ECR I-6079; Case 1/92, Opinion Delivered Pursuant to the Second
Subparagraph of Article 228(1) of the EEC Treaty, 1992 ECR I-2821.
609
See Matthias Herdegen, Vertragliche Eingriffe in das ‘Verfassungssystem’ der Europäischen
Union, in I Festschrift für Ulrich Everling (supra note 228), at 447, 456. See also Roland Bieber,
Les limites matérielles et formelles à la révision des traités établissant la Communauté eu-
ropéenne, Revue du Marché Commun et de l’Union européenne 343, 346–49 (1993).
610
See Herdegen, ibid. at 461. See also Jacqué, La Constitution de la Communauté (supra note
594), at 404, and Bieber, Les limites (supra note 609), at 349 (declaring as inadmissible a dimi-
nution of fundamental rights and freedoms recognized by the EU; of democratic guarantees like
the institution of the European Parliament, the direct election of its members, or the degree of
its participation in the legislative process; and of judicial guarantees like the existence of the
Court of Justice of the European Communities, the effect of its decisions, and the access of in-
dividuals to the Court).
611
See Neil Walker, Post-Constituent Constitutionalism? The Case of the European Union, in The
Paradox of Constitutionalism (supra note 48), at 247.
612
See Schmitt, Verfassungslehre 25–28 (1928) (arguing that the pouvoir constitué does not have the
power to change the ‘fundamental political decisions determining the substance of a constitution’
 Consequences 143

the much older distinction between pouvoir constituant and pouvoirs constitués, as
systematized by Sieyès, which implies that the institutions established by a con-
stitution are not at liberty to take the place of the original constituent power and
to change the essence of the constitution.613 Even when the French Constitution
of 1793 declared that a people always has the right to change its constitution,614
that right did not apply to the fundamental principles enshrined in the Declaration
of the Rights of Man.615 As Konrad Hesse said:
In any case a constitutional amendment requires that those rules are preserved which
constitute the identity of the constitution. … ‘Amendments’ which would destroy
this identity and thus bring about discontinuity are inadmissible. In reality, in that
case constitutional law is not amended but created. Outside the law of the hitherto
valid constitution, that constitution is replaced by a new one.616
In the same line of thought, the Italian Constitutional Court recognized in 1988
implicit limitations of the amending power resulting from the inviolability of
fundamental constitutional principles.617 Accordingly, one has good reason to
regard explicit prohibitive rules which protect the very essence of a constitution
as declarative only.618
In the written text of the UN Charter, there are no provisions about ultimate
bounds to Charter amendments. Articles 108 and 109 are concerned with

as made by the pouvoir constituant). For Schmitt’s concept of constitution, see supra ch. 1,
Constitutional Theory in Europe between the two World Wars. However, clauses like Art. 79(3) of the
German Constitution can be based on very different constitutional concepts (ranging from
Schmitt’s to those of natural law); see Häberle, Ewigkeitsklauseln (supra note 598), at 614 n. 67.
613
See Grewe & Ruiz Fabri, Droits constitutionnels européens (supra note 34), at 50. As to the power
to amend the constitution (pouvoir de révision), a distinction is made between a pouvoir constitu-
ant originaire (the original constituent power which established the constitution) and a pouvoir
constituant dérivé (or institué) (the derivative, or instituted, constituent power which derives its
power to amend the constitution from the original constituent power).
614
See supra note 458.
615
See Hofmann, Zur Idee des Staatsgrundgesetzes (supra note 155), at 295. See also Vattel, Le
Droit des Gens (supra note 30), liv. I, chap. III, § 34, and the distinction between articles régle-
mentaires and articles fondamentaux in the French Constitution of 1814. The majority of schol-
ars of the time was of the opinion that only the former, but not the ‘fundamental’ rules could
be amended by the legislature.
616
See Hesse, Verfassung und Verfassungsrecht (supra note 562), at 12.
617
Corte costituzionale, Decision no. 1146/1988 of 15 Dec. 1988, 89 Raccolta ufficiale delle
sentenze e ordinanze delle Corte costituzionale 627, 632–33, reprinted in 33 Giurisprudenza
Italiana II, pt. 1, at 5565, 5569 (1988) (with a comment by Sergio Bartole). See Grewe & Ruiz
Fabri, Droits constitutionnels européens (supra note 34), at 57–58.
618
See Häberle, Ewigkeitsklauseln (supra note 598), at 612, and, in particular, Horst Ehmke,
Grenzen der Verfassungsänderung (1953), reprinted in id., Beiträge zur Verfassungstheorie und
Verfassungspolitik (Peter Häberle ed., 1981), at 21, 100–01, 134–35.
144 Chapter Six

procedure, not with substance. However, a constitutional reading of the Charter

suggests the existence of implicit, unwritten limits.619 ‘For a body entrusted with
the task of amending a constitution, the “spirit” of the constitutional order is
intrinsically inviolable’.620 The Charter is based on certain values and principles
most of which are set out in the Preamble and Articles 1 and 2.621 Deprived of
those fundamental rules, the Charter would cease to be what it is today.622
Constitutional change of a legal system committed to values and goals like peace,
self-determination of peoples and human rights – i.e., generally speaking, a
restriction and rationalization of governmental power – is inherently limited by
the responsibility for maintaining this order of liberty and confined power.623 As
Louis Henkin put it, constitutional ‘[a]mendments must not be such as to dero-
gate from the commitment to constitutionalism’.624
Consequently, the Charter does not authorize member states to abolish, for
instance, the commitment of the international community to ‘fundamental
human rights’ or to ‘the dignity and worth of the human person’, or the principle
of sovereign equality of states, or the prohibition of the use of force. Such ‘amend-
ments’ of the Charter would result in a legal order so different from the constitu-
tion associated with the name of the United Nations that the latter would have to
be regarded as discontinued. The inadmissibility of certain amendments does not
follow from the fact that the relevant norms possibly ‘preceded’ the Charter but
from the outstanding importance of those norms in the constitutional order

619
The same conclusion was reached by Prof. Frowein. It was, however, based on a different line of
argument, namely the need for protecting a minority of member states which do not support a
particular amendment: ‘Fundamental changes as to structure and functions of international
organisations cannot be effected by use of the normal amendment procedure against a minority
of parties to the treaty establishing the organisation’. See Jochen A. Frowein, Are there Limits to
the Amendment Procedures in Treaties Constituting International Organisations? In Liber
Amicorum Ignaz Seidl-Hohenveldern 201, 218 (Gerhard Hafner et al. eds., 1998) (the issue of
amendments to the UN Charter is addressed at 206–09).
620
See Häberle, Ewigkeitsklauseln, at 613. See also ibid. at 597.
621
For the close relationship between constitutional preambles and rules prohibiting certain
amendments, see Häberle, ibid. at 614. For the normative force of preambles, see Häberle,
Präambeln im Text und Kontext von Verfassungen, in id., Rechtsvergleichung (supra note 223),
at 176, 188–90, 203–05, 207–08. See also Smend, Verfassung und Verfassungsrecht (supra note
41), at 108–09, 158, and Schmitt, Verfassungslehre, at 25. For an analysis of the preamble of the
UN Charter, see Die Präambel der UN-Charta im Lichte der aktuellen Völkerrechtsentwicklung
(Stephan Hobe ed., 1997).
622
For the notion of ‘fundamental constitutional principles’, or ‘structural principles’, see Kurt
Eichenberger, Vom Umgang mit Strukturprinzipien des Verfassungsstaates, in Festschrift für
Klaus Stern (supra note 569), at 457.
623
See Scheuner, Verfassung (supra note 75), at 180.
624
See Louis Henkin, Elements of Constitutionalism 10 (Columbia University Center for the Study
of Human Rights ed., 1994).
 Consequences 145

established by it. In that sense, one may speak of a hierarchy of constitutional law
of the international community.

Freedom and Restraint of Security Council Reform

The issue of a reform of the UN Security Council, which has been a matter of
intense discussion since the beginning of the 1990s,625 can serve as an example of
the constitutional limits which the bodies endowed with the power to amend the
Charter must respect as pouvoirs constitués. These bodies are the General Assembly
(Article 108 of the Charter) and the General Conference (Article 109) of the
United Nations, which are both composed of representatives of all UN member
states, with every member state having one vote. At first sight, the substantive
principles mentioned above do not seem to be affected if the composition and
procedure of one of the organs established by the Charter are going to be changed.
Accordingly, it seems difficult to argue here that restrictions of the amendment
power follow from an obligation to preserve the ‘core identity’ of the Charter.
The functioning of the Council is, however, not an end in itself. Rather it is
meant to foster the achievement of certain purposes, the most important of which
is the maintenance of international peace and security. Accordingly, one can say
that if a reform of the Council made it impossible for the Organization effectively
to serve that purpose, such a reform would have to be deemed unconstitutional.
To put it differently, because the Charter is the constitution of the international
community, member states are obliged to maintain a mechanism with a certain
minimum ability to safeguard international peace. This implies that the bodies
entrusted with Charter amendment enjoy wide discretionary powers. The Charter
does not make mandatory any specific kind of Council reform. However, from a
constitutional perspective the central idea must be that a restructuring of the
Council and its voting procedure should advance as much as possible a realization
of the aims and purposes of the international community as set out in the Charter.
A Council reform should promote in particular international peace and security,
and the dignity and worth of the human person.
In the ongoing discussion, governments have invoked a number of principles
or ‘concepts’ which they support with legal arguments.626 They maintain that

625
See Fassbender, UN Security Council Reform (supra note 29), at 221–75; id., All Illusions
Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council,
7 Max Planck Y.B. U.N. Law 183 (2003); id., On the Boulevard of Broken Dreams: The Project
of a Reform of the UN Security Council after the 2005 World Summit, 2 Int’l Organizations L.
Rev. 391 (2005).
626
See, e.g., Report of the Open-ended Working Group [of the UN General Assembly] on the
Question of Equitable Representation on and Increase in the Membership of the Security
146 Chapter Six

these principles, the application of which would lead to different and partly
incompatible types of Council reform, are either explicitly pronounced in the
Charter or follow from a systematic reading of the instrument.
The principle to which governments refer most often is that stated at the very
beginning of Article 2 of the Charter—the principle of the sovereign equality of
UN member states. A related notion is that of the representativeness of the
Council. On the face of it, representativeness is a corollary of respect for equality.
It may amount to more than that, however, because a body composed of states
cannot be called representative if it does not reflect, to some degree, inequalities
within its constituency. The concept of a ‘democratic international society’ is
advanced by developing countries claiming a better representation on the Council.
In light of the main purposes of the United Nations, including the maintenance
of international peace and security and the promotion of ‘social progress and bet-
ter standards of life in larger freedom,’627 and in light of the Charter’s intention of
providing the best possible structures and procedures for attaining these goals,
‘effective governance’ may be another constitutional principle relevant to Security
Council reform. Finally, a closer look at the respective roles allocated to the
General Assembly, the Security Council and the International Court of Justice
appears to reveal a rudimentary system of checks and balances, or constitutional
control, in which a reformed Security Council should be accorded its proper
place.628
But do the principles and concepts in question, regardless of their content and
legal status, permit to reach beyond the status quo? Sovereign equality, for instance,
is a principle not to be found in the Charter in a pure or abstract form but only
as that amalgam which is the outcome of the allocation of rights and responsibili-
ties by the Charter.629 The Charter has, in fact, newly defined the classical notions
of sovereignty and equality of states to accommodate the needs of a world ‘deter-
mined to save succeeding generations from the scourge of war’. Accordingly, one
cannot assert that there is a conflict or contradiction between the principle of
sovereign equality on the one hand, and limited access of member states to the

Council, UN Doc. A/50/47 of 13 Sep. 1996, at 5: ‘[The Group] again recognized that the
principles of the sovereign equality of all Members of the United Nations, equitable geographi-
cal distribution and contribution to the maintenance of international peace and security, as well
as to the other purposes of the Organization, should guide the work on the reform of the
Security Council. … [I]t reiterated that the concepts of transparency, legitimacy, effectiveness
and efficiency should also be taken into account in this context as should, in the view of a large
number of delegations, the concept of democracy’.
627
Preamble of the Charter, para. 4.
628
See supra text accompanying note 427.
629
See supra text accompanying note 476.
 Consequences 147

Council and the veto power of the permanent members on the other hand, which
should be remedied through Charter reform. Neither can the principle, as it
stands today, prescribe exactly how rights and responsibilities of the member
states should be allocated in the future.
The foregoing does not, however, preclude a distinction and critical appraisal of
different elements of this consolidated principle. The Charter, it is true, is the
ultimate point of reference. But its letter is grounded on and influenced by assump-
tions and premises which interpretation may not ignore. As regards the veto, the
drafting history of the Charter reveals that it was invented and understood to be
an exceptional device, a divergence from the ideal of full equality which could not
be realized under the prevailing circumstances. In a discussion of alternative modes
of Council reform and their relative merits, one is therefore not prevented from
giving more weight to one element than to another, nor is one prevented from
declaring one element, but not another, to represent the essence of a principle.
One can also oppose and balance the different principles mentioned above in
order to suggest, in the end, a reform of the Security Council which can be regarded
as a constitutionally sound progressive development of the Charter.
In 1948, Philip C. Jessup pointed out that ‘[i]t is supremely difficult to find
acceptable formulae [for inequalities in voting power and in representation] in
political organizations, where the prestige factor and problems of political exist-
ence may be at stake’.630 It remains to be seen whether it is possible not to replace
but to complement a set of political, and therefore shifting, ‘formulae’ with con-
stitutional considerations able to guide the allocation of responsibilities and rights
to individual members of the international community.631

Non-Member States

Seeing the Charter as a constitution that applies to all community members632

offers the best possible explanation for the demands made on non-member states
in Articles 2, paragraph 6, and 103.633 As Hans Kelsen already remarked in 1950,
‘[o]nly if the Charter … is considered to constitute a new general international

630
See Philip C. Jessup, A Modern Law of Nations: An Introduction 30 (1948).
631
For a detailed discussion of the questions mentioned here, see Fassbender, UN Security Council
Reform (supra note 29), ch. 10.
632
See supra ch. 4, Constitutional Characteristics of the UN Charter: Universality and the Problem of
Sovereignty.
633
In this context, it is worth recalling a statement made by Sir Hersch Lauterpacht who already
realized that the claim made by the Charter in Art. 2(6) exceeded the ‘normal’ powers of states
as treaty-makers: ‘[I]n proportion as international society is transformed into an integrated
148 Chapter Six

law, that is to say, if the law of the United Nations is recognized to be valid for,
and applicable to, all the states of the world, the provision of Article 103 as relat-
ing to treaties between Members and non-members is not at variance with exist-
ing law’.634 It is true that the two provisions ‘are merely partial answers to the
fundamental issue of the place of the UN Charter in the international commu-
nity and its relationship to other norms of international law’.635 Nevertheless,
they give a strong hint of its constitutional character. Such qualification also
explains the corresponding practices of the Security Council both of taking action
against non-member states on the basis of Chapter VII and of addressing its deci-
sions to ‘all States’, irrespective of their membership in the UN Organization.636

Legal Persons Other than States as Addressees of Security Council Decisions

In situations of civil strife in a country, the Security Council now almost rou-
tinely appeals to all sides concerned, not only to the government acting on behalf
of the state, as the entity which has formally accepted the commitments set forth
in the UN Charter. Still, until the mid-1990s the Council had never used the
instrument of a binding decision vis-à-vis a non-state entity.637 This changed in
the course of the Yugoslav crisis, when the Council, acting under Chapter VII,
made demands on ‘the Bosnian Serb forces’ and ‘the Bosnian Serb party’, respec-
tively.638 In the present study I have tried to show that the Council was fully

community, a departure from the accepted principle [that treaties cannot validly impose obliga-
tions upon third states] becomes unavoidable, in particular in the sphere of preservation of in-
ternational peace and security. … Both the Covenant … and the Charter … must therefore be
regarded as having set a limit, determined by the general interest of the international commu-
nity, to the rule that a treaty cannot impose obligations upon States which are not parties to it’.
See Oppenheim-Lauterpacht (8th ed., supra note 444), at 928–29.
634
Kelsen, The Law of the United Nations (supra note 359), at 116. That it is not possible consist-
ently to explain, on the basis of a contractual view, the status of non-member states under the
Charter was demonstrated by Professor Macdonald. See Macdonald, Reflections on the Charter
(supra note 319), at 29–34.
635
See Köck, UN-Satzung und allgemeines Völkerrecht (supra note 115), at 92.
636
See Tomuschat, Obligations for States (supra note 176), at 256: ‘Significantly enough, there are
hardly any voices challenging the lawfulness of the Security Council’s interpretation of its pow-
ers vis-à-vis third States. Members of the Security Council have never made it a point of princi-
ple, and the dissenting or abstaining States’ reluctance was in no case prompted by any reserva-
tions concerning the treatment meted out, through the all-States clause, to third States’.
637
See Tomuschat, Obligations for States (supra note 176), at 255.
638
See SC Res. 1004 of 12 July 1995 and Res. 1010 of 10 Aug. 1995. See also Res. 1127 of 28 Aug.
1997 which provided for sanctions against the National Union for the Total Independence of
Angola (União Nacional para a Independência Total de Angola) (UNITA).
 Consequences 149

entitled to make such demands, as the Charter is binding upon all members of the
international legal community. This community includes belligerent and insur-
gent bodies whose (limited) international legal personality is generally acknowl-
edged.639 Also included are universal or regional intergovernmental organizations,
regardless of whether all of their members have ratified the Charter. The Security
Council has adopted a practice of ‘calling upon’ international organizations to act
in accordance with its resolutions. Although the Council does not use the words
‘decides that’ at the beginning of the relevant paragraphs, its ‘call’ is more than just
an appeal or request of a political character because legal consequences are attached
to it.640 In fact, the Council presupposes that intergovernmental organizations are
generally required to comply with Council resolutions—a responsibility which
can only be based on the Charter.641
Inasmuch as the activity of individuals can have a bearing on the maintenance
of international peace and security broadly understood, they, too, can be address-
ees of Security Council decisions.642 The same applies to associations and corpo-
rations established under private law, among them multinational corporations
whose role in international affairs is ever more important.643 It is not impossible
to conceive of a situation in which the conduct of such corporations is of critical
importance to the preservation of world peace. In such a case, the Council may
directly address the corporation in question.644

639
See, e.g., Brownlie, Principles (supra note 21), at 63.
640
See, e.g., SC Res. 748 of 31 March 1992 (Libya), para. 7: ‘The Security Council … Calls upon …
all international organizations, to act strictly in accordance with the provisions of the present
resolution, notwithstanding the existence of any rights or obligations conferred or imposed by
any international agreement or any contract entered into or any licence or permit granted prior
to 15 April 1992’. See also SC Res. 841 of 16 June 1993, para. 9, and 917 of 6 May 1994, para.
12 (Haiti).
641
That intergovernmental organizations, although they have not ratified, and cannot ratify, the
UN Charter, are bound by it was expressed by Art. 30(6) of the Vienna Convention on Treaties
with and between International Organizations of 1986, which stipulates that ‘[t]he preceding
paragraphs are without prejudice to the fact that, in the event of a conflict between obligations
under the Charter of the United Nations and obligations under a treaty, the obligations under
the Charter shall prevail’.
642
For the issue of ‘targeted sanctions’ against individuals and entities established by them, see
supra text accompanying note 414.
643
For an overview, see Daniel Thürer, The Emergence of Non-Governmental Organizations and
Transnational Enterprises in International Law and the Changing Role of the State, in Non-
State Actors as New Subjects of International Law 37 (Rainer Hofmann ed., 1999).
644
Such authority of the Council may be regarded as a form of international ‘public executive and
judicial control’ of private economic activities which Professor Friedmann some forty years ago
expected to be exerted in ‘a further stage in international legal organisation’. See Friedmann,
Changing Structure (supra note 14), at 231.
150 Chapter Six

With respect to the position of regional organizations under the UN Charter,

it is worth recalling the finding of the Court of First Instance of the European
Communities in the Yusuf and Kadi cases that the European Community ‘must
be considered to be bound by the obligations under the Charter of the United
Nations in the same way as its Member States, by virtue of the Treaty establishing
it’.645 It is, the Court held, ‘by virtue of the EC Treaty itself that the Community
was required to give effect to the Security Council resolutions concerned, within
the sphere of its powers’.646 However, if the EC Treaty obliges the European
Community to respect the rules of the Charter, to give effect to the decisions of
the Security Council and not to impede the performance of the obligations of the
EC member states which stem from the Charter, this is only a recognition and
acknowledgment, by the law of the Community, of an obligation which arises
directly for the Community by virtue of the Charter. For the Charter, as the con-
stitution of the international community, is binding on all subjects of interna-
tional law, including regional intergovernmental organizations.

Admission and Expulsion of UN Member States

One reason for the distinction between members and non-members in the Charter
was the wish to keep, for the time being, the ‘enemy states’ of World War II out of
an organization that originated from an alliance gathered against those states under
the same name, ‘The United Nations’ (in the plural).647 Germany surrendered to
the Allied Powers only shortly after the San Francisco Conference had convened,648
and the surrender of Japan did not occur until some two months after signature of
the Charter.649 The ‘enemy states’ should first prove their ‘peace-loving’ character
and then apply for membership in accordance with Article 4 of the Charter.650

645
See Judgments of 21 Sep. 2005 (supra note 449), para. 243 and 193, respectively.
646
Ibid., para. 257 and 207, respectively.
647
See the ‘Declaration by United Nations’ of 1 Jan. 1942, reprinted in Goodrich & Hambro,
Charter of the United Nations (2d ed.) (supra note 447), at 570. According to Art. 53(2) of the
Charter, ‘[t]he term enemy state … applies to any state which during the Second World War has
been an enemy of any signatory of the present Charter’. For comment, see Sir Michael Wood,
United Nations Charter: Enemy States Clauses, in The Max Planck Encyclopedia of Public
International Law, Oxford University Press, 2008, online edition.
648
The Conference convened on April 25, 1945. Germany surrendered on May 7 and 8, 1945.
649
The Charter was signed by the delegates on June 26, 1945, following the final approval by the
Conference on the previous day. Japan surrendered on Sep. 2, 1945.
650
Of the members of the ‘Tripartite Pact’ of 1940, Bulgaria, Finland, Hungary, Italy and Romania
were admitted to the UN in 1955, and Japan in 1956. The two German states established
in 1949, the Federal Republic of Germany and the German Democratic Republic, were only
admitted in 1973.
 Consequences 151

If it is true that today all states – including newly independent states651 – are
equally obliged to heed the rules of the Charter, as the constitution of the inter-
national community, then all states are also equally entitled to membership in the
organs of that community. The ‘principle of universality’ of the UN, understood
as an expression of such entitlement, follows from the constitutional character of
the Charter. Article 4, paragraph 1 must therefore be read as entitling every inde-
pendent and ‘peace-loving’ state to membership.652 As Kelsen wrote in 1945,
[i]f the international peace whose maintenance is declared a purpose of the
Organization … is to be a ‘universal’ peace … then the Organization established to
maintain such peace should have a universal character too; membership in this
organization should really be ‘open’ to all peace-loving states. This would be the case
only if any state is allowed to join the Organization on the condition that it accepts
without reservation the obligations stipulated by the Charter.653
A state is ‘peace-loving’ if it credibly accepts the fundamental constitutional prin-
ciples of the international community as enshrined in the Charter and other
instruments based on it.654 Having been admitted to the Organization, a state is
enabled to take part in the constitutional development of the international com-
munity. This right to membership is particularly momentous if one realizes that

651
See Franck, Fairness (supra note 354), at 29: ‘Once a state joins the community of states (today
an inescapable incidence of statehood) the basic rules of the community and of its legitimate
exercise of community authority apply to the individual state regardless of whether consent has
been specifically expressed’.
652
See Admission of a State to the United Nations, Adv. Op., 1947–48 ICJ Rep. 57, 71 (Álvarez, J.,
indiv. op.): ‘[H]aving regard to the nature of the universal international society, the purposes of
the United Nations Organization and its mission to universality, it must be held that all States
have a right to membership in that Organization. The exercise of this right cannot be blocked
by the imposition of other conditions not expressly provided for by the Charter … ’. See also
the amendments and comments of states concerning ch. III, para. 1 of the Dumbarton Oaks
Proposals (in The United Nations Conference: Selected Documents [supra note 581], at 111–12):
‘The International Organization shall be composed of all sovereign states that now exist or
which in the future may exist under their own independent conditions of life’ (Brazil); ‘The
establishment of this Organization on a universal basis of such a kind that every state, by reason
of its being a state, would be a member of it, must be considered a final objective’ (Costa Rica);
‘All the present sovereign states of the world or those which may subsequently become so, shall
have the power to apply for admission … and shall be admitted in effect if they possess the
qualifications and fill the requirements which shall be determined … by the General Assembly’
(Ecuador); ‘[T]he Organization contemplated would stand on a firmer basis if it were given
absolute universality, in such wise that every state should by the very fact of its being such be
included as a member. The Organization would thereby embrace the whole international com-
munity’ (Guatemala).
653
Hans Kelsen, The Old and the New League: The Covenant and the Dumbarton Oaks Proposals,
39 Am. J. Int’l L. 45, 47 (1945).
654
See supra ch. 5, ‘Constitutional By-Laws’ of the International Community.
152 Chapter Six

today ‘in most instances membership in the United Nations determines the exist-
ence of a State, irrespective of any additional unilateral acts of recognition on the
part of States’.655
Since the ‘package deal’ of 1955656 and, subsequently, the solution of the
micro-state question (to the effect that a state is admitted without regard to the
size of its territory or population, or the strength of its economy or military),657
UN practice has generally been in accordance with this proposition of a right
to membership. That practice recognizes a constitutional right to member-
ship—a right already implied by the words ‘open to all other peace-loving states’
in Article 4, paragraph 1 of the Charter.
The most notable exceptions to the principle of a right to membership for
states that desire it were the cases of the divided states: Germany, Korea and
Vietnam. These states were the focal points of East-West confrontation, where
each side tried to prevent the other from expanding its sphere of influence. In
fact, the ‘package deal’ of 1955 had only been made possible by not including the
applications of the two Vietnams and the two Koreas (no German applications
were pending at the time).658 The respective states, whose independence was
called in question by either the Western or the socialist block, were admitted to
the UN ‘only after the conflicting claims of the two sides had been formally
adjusted, either in favour of division (in the view of one side possibly only on a
provisional basis) or in favour of reunification’.659 With the explicit approval of
the Four Principal Allied Powers, the two German states were admitted in 1973
after they had newly defined their relations in a treaty. An earlier effort of the
German Democratic Republic, which had expressly asserted a ‘right to member-
ship’, had failed because of the opposition of the United States, the United
Kingdom and France.660

655
See John Dugard, Recognition and the United Nations 167 (1987).
656
See Leo Gross, Progress towards Universality of Membership in the United Nations, 50 Am. J.
Int’l L. 791 (1956).
657
See Jorri C. Duursma, Fragmentation and the International Relations of Micro-States: Self-
determination and Statehood 134–42 (1996).
658
See the joint draft resolution of 16 Nov. 1955: ‘The General Assembly, … 2. Requests the Security
Council to consider, in the light of the general opinion in favour of the widest possible member-
ship of the United Nations, the pending applications of all those countries about which no
problem of unification arises’. See Gross, Progress towards Universality (supra note 656), at 798.
659
See Konrad Ginther, Comment on Art. 4, in I The Charter of the United Nations (2d ed.) (supra
note 115), at 177, 185.
660
See Application for Admission of the German Democratic Republic to the UN, 28 Feb. 1966,
reprinted in XIV Dokumente zur Aussenpolitik der Deutschen Demokratischen Republik, pt. 1, at
639–91 (1970); Letter of the Governments of France, Great Britain and the United States to the
President of the Security Council, 16 March 1966, reprinted in 21 Europa-Archiv D 196
(1966).
 Consequences 153

One must distinguish these cases, in which admission was delayed or denied
because of the political and ideological antagonism between member states, from
those in which UN organs did not recognize aspirant states because they had
come into being as a result of a violation of the right of self-determination, the
prohibition of aggression, or the prohibition of racial discrimination and
apartheid.661 While this latter course of action is in line with the Charter, one can
still conceive of a situation in which an entity has, over time, stabilized its inde-
pendent political existence to such an extent that, in spite of its illegal birth, it can
no longer be refused participation in the organs of the international community.
My interpretation of Article 4, paragraph 1 of the Charter does not, however,
make the granting of membership in the UN automatic. First, there must be a
procedure to ascertain whether the criteria of independent statehood and willing-
ness to carry out the Charter obligations are met. Second, at this stage of the
constitutional development of the international community an obligation actively
to participate in the work of the community organs cannot yet be assumed—a
state is free to decide not to apply for membership in the UN.662
Just as a state can presently still abstain from becoming a member of the UN,
it can also leave the Organization or temporarily withdraw from its institutions.
Although the Charter does not contain a clause specifically providing for such
withdrawal, it was understood at San Francisco that a state could not be com-
pelled to remain in the Organization against its will.663 While it is not clear

661
For the cases of Biafra, Katanga, Rhodesia, South Africa’s ‘independent national states’, and the
‘Turkish Republic of Northern Cyprus’, see Dugard, Recognition (supra note 655), at 84–111,
154 (1987).
662
But see the amendment proposed by Mexico concerning ch. III, para. 1 of the Dumbarton
Oaks Proposals (in The United Nations Conference: Selected Documents [supra note 581], at 112):
‘[T]he tendency should be to make the Organization, in due course, include all the members of
the community of nations, without any state being lawfully entitled to remain outside the
Organization’. (Emphasis added.)
663
See the declaration on withdrawal from membership, approved by the San Francisco Conference
in plenary session, in Goodrich & Hambro, Charter of the United Nations (2d ed.) (supra note
447), at 143: ‘The Committee [I/2 of the San Francisco Conference] adopts the view that
the Charter should not make express provision either to permit or to prohibit withdrawal from
the Organization. The Committee deems that the highest duty of the nations which will be-
come Members is to continue their cooperation within the Organization for the preservation of
international peace and security. If, however, a Member because of exceptional circumstances
feels constrained to withdraw, and leave the burden of maintaining international peace and se-
curity on the other Members, it is not the purpose of the Organization to compel that Member
to continue its cooperation in the Organization’.
For comment, see Goodrich & Hambro, ibid. at 145: ‘The effect of this declaration, taken
together with the absence of any express provision regarding withdrawal in the Charter, is to
place upon each Member the duty to justify its withdrawal in the eyes of the United Nations
and its Members’.
154 Chapter Six

whether a member was thought to be able to divest itself of the obligations set out
in the Charter by withdrawing from the Organization664 (a view not supported by
Article 2, paragraph 6), a constitutional view of the Charter precludes this con-
clusion. For the time being, a state is free not to exercise its constitutional right to
participate in the work of the community organs. In 1950, for example, the
Soviet Union temporarily withdrew from the Security Council and other UN
organs in reaction to the majority’s refusal to replace the Kuomintang Government
with that of the People’s Republic as representative of China.665 In 1965, Indonesia
decided to withdraw from the Organization ‘at this stage and under the present
circumstances’. The country resumed its participation a year later.666 A state can-
not leave the international community, however, and it cannot escape the rules
set out in its constitution.667 Thus, since the participation of a state in the work

664
See Report of Rapporteur (General) of Committee I/2 to Commission I on Chapter XI, 22 June
1945, and Report of Rapporteur of Commission I to Plenary Session, San Francisco Conference,
24 June 1945, reprinted in The United Nations Conference: Selected Documents (supra note 581),
at 519, 525–26, and 595–96, respectively. See also letter to the Secretary-General of 8 March
1965 on the occasion of Indonesia’s (temporary) withdrawal from the UN, in which the UK
Government, referring to the terms of Art. 2(6) of the Charter, declared ‘that a State which had
expressed an intention to withdraw from the Organization nevertheless remained bound to
observe the fundamental principles embodied in Article 2 of the Charter relative to the mainte-
nance of international peace and security’. UN Doc. A/5910 (S/6229) (1965), quoted in 1964
U.N.Y.B. 191. In a note verbale of 13 May 1965 addressed to the Secretary-General, the Italian
Government observed that ‘[no] State could by withdrawing from the Organization avoid some
of the fundamental obligations laid down in the Charter’. UN Doc. A/5914 (S/6356) (1965),
quoted in 1965 U.N.Y.B. 237.
665
See 1950 U.N.Y.B. 52, 74–77, 108–09, 415–16, 419–20.
666
Letter of the Indonesian Government of 20 Jan. 1965. See Egon Schwelb, Withdrawal from the
United Nations: The Indonesian Intermezzo, 61 Am. J. Int’l L. 661 (1967); Yehuda Z. Blum,
Indonesia’s Return to the United Nations, 16 Int’l & Comp. L.Q. 522 (1967). In this case, the
UN neither acknowledged the validity of Indonesia’s action nor pronounced on its legal conse-
quences. The Secretary-General merely expressed ‘the earnest hope that in due time [Indonesia]
will resume full co-operation with the United Nations’ (UN Doc. A/5899 (S/6202) of 26 Feb.
1965, quoted in 1964 U.N.Y.B. 191)—a phrase on which Indonesia fell back when it declared,
on 19 Sep. 1966, ‘to resume full co-operation with the United Nations and to resume participa-
tion in its activities’ (UN Doc. A/6419 (S/7498), quoted in 1966 U.N.Y.B. 207). On 28 Sep.
1966, the General Assembly took note of this decision and its President invited the representa-
tives of Indonesia to take seats in the Assembly. No readmission procedure took place, and
Indonesia paid, for the period of its non-participation, ten per cent of her assessed contributions
(see 1966 U.N.Y.B. 208).
667
This conclusion is supported by a formulation of the declaration (supra note 663) according to
which ‘it is not the purpose of the Organization to compel [a] Member to continue its coopera-
tion in the Organization’ (emphasis added). See also Herbert W. Briggs, Power Politics and
International Organization, 39 Am. J. Int’l L. 664, 674 (1945): ‘[A]t most the alleged Declaration
 Consequences 155

of the community organs still relies on consent, one can say that such participa-
tion is of a contractual nature, whereas a state’s commitment to the substantive
rules of the Charter and its subjection to the authority of the community organs
are not.
An understanding of the UN Charter as a constitution also has consequences
for the interpretation of its Articles 5 and 6. Just as a state cannot evade its obliga-
tions under the constitution of the international community, it cannot be expelled
from the constitutional community as such. This membership in the interna-
tional community has to be distinguished from a state’s participation in the work
of the community organs. A (temporary) suspension ‘from the exercise of the
rights and privileges of membership’, as provided for in Article 5 of the Charter,
is acceptable from a constitutional point of view. However, it seems inadmissible
permanently to exclude a state from the organic structure of the community as
established by the Charter. To prevent a state permanently from participating in
the work of the community organs is incompatible with the very idea of an inter-
national community living under a constitution. In a domestic context, punish-
ing a lawbreaker by permanently withdrawing his political liberties (like his right
to vote or to hold a public office) may be acceptable. But a state, as an entity
representing an entire people in international relations, cannot infinitely be
excluded from the community organs.
This view is confirmed by the fact that in the history of the UN not a single
state has been expelled from the Organization.668 In the case of the Federal

on Withdrawal sanctions only non-participation in the affairs of the United Nations, and that
the non-participating state would still be a Member and would continue [to be] legally subject
to the obligations of the Charter’, and Blum, Indonesia’s Return (supra note 666), at 530 n. 37:
‘[A] distinction is called for between the acceptance by a State of the obligations contained in
the Charter, on the one hand, and that State’s admission to the United Nation, on the other
hand. … [A] situation can be conceived in which a withdrawing State still considers itself
bound by the obligations imposed on it under the Charter (independently of the provisions of
Art. 2(6) of the Charter)’.
668
Various efforts aimed at an exclusion of Belgium, Israel, Portugal and South Africa. In 1974, a
draft resolution recommending to the General Assembly the immediate expulsion of South
Africa from the UN failed to be adopted by the Security Council because of the negative votes
of the three Western permanent members. See 1974 U.N.Y.B. 109–15.
In the League of Nations, neither in the case of the Japanese aggression against China, nor in
the case of the Italian aggression against Ethiopia, was there a formal attempt at expulsion. It
was only in 1939, at a time when the League experiment had basically failed, that the Soviet
Union was excluded. See Sohn, Expulsion (supra note 156), at 1386–90, and Leo Gross, Was
the Soviet Union Expelled from the League of Nations? 39 Am. J. Int’l L. 35 (1945) (conclud-
ing, however, that the resolution of the League Council of 14 Dec. 1939 did not have the
156 Chapter Six

Republic of Yugoslavia (Serbia and Montenegro), the action taken by the Security
Council and the General Assembly in 1992 de facto amounted to a suspension
from the exercise of certain rights of membership.669 That suspension, which
lasted until 2000, was constitutionally questionable because the reasons put

legal effect of terminating the membership of the USSR because the requirement of unanimity
provided for in Art. 16(4) of the Covenant was not met).
669
See SC Res. 777 of 19 Sep. 1992: ‘The Security Council, … Considering that the State formerly
known as the Socialist Federal Republic of Yugoslavia [SFRY] has ceased to exist, Recalling in
particular resolution 757(1992) which notes that “the claim by the Federal Republic of
Yugoslavia (Serbia and Montenegro) [FRY] to continue automatically the membership of the
former SFRY in the United Nations has not been generally accepted”, 1. Considers that the FRY
cannot continue automatically the membership of the former SFRY in the United Nations; and
therefore recommends to the General Assembly that it decide that the FRY should apply for
membership in the United Nations and that it shall not participate in the work of the General
Assembly’. In a statement prior to the vote, the Russian Federation emphasized that the resolu-
tion in no way affected Yugoslavia’s participation in the work of UN bodies other than the
General Assembly, particularly the Security Council (see 1992 U.N.Y.B. at 138–39). The
General Assembly followed the recommendation by adopting Res. 47/1 (22 Sep. 1992). In a
letter dated 29 Sep. 1992, the Under Secretary-General for Legal Affairs stated, inter alia, that
‘the resolution [GA Res. 47/1] neither terminates nor suspends Yugoslavia’s membership in the
Organization. … The resolution does not take away the right of Yugoslavia to participate in the
work of the organs other than Assembly bodies. The admission to the United Nations of a new
Yugoslavia under Article 4 of the Charter will terminate the situation created by resolution
47/1’. UN Doc. A/47/485, reprinted in 87 Am. J. Int’l L. 247–48 (1993). On 28 April 1993,
the Security Council recommended to the General Assembly ‘that, further to the decisions
taken in resolution 47/1, it decide that the FRY shall not participate in the work of the Economic
and Social Council’. The Assembly decided accordingly (Res. 47/229 of 29 April 1993).
The FRY Government held on to its claim to continue the membership of the former
Yugoslavia, an original member of the UN, until 2000 when President Milošević was voted out
of office. On 27 Oct. 2000, his successor, President Kostunica, requested ‘the admission of the
FRY to membership in the UN in light of the implementation of SC res. 777 (1992)’ (UN Doc.
A/55/528–S/2000/1043 of 30 Oct. 2000). On 1 Nov. 2000, the General Assembly, following
a recommendation of the Security Council (SC Res. 1326 of 31 Oct. 2000), admitted the FRY
under Art. 4 of the Charter as a new member to the UN (GA Res. 55/12).
For discussion, see Yehuda Z. Blum, UN Membership of the ‘New’ Yugoslavia: Continuity
or Break?, 86 Am. J. Int’l L. 830 (1992); id., 87 Am. J. Int’l L. 248 (1993); Vladimir-Djuro
Degan, Ove E. Bring and M. Kelly Malone, 87 Am. J. Int’l L. at 240, 244, 246 (1993). For a
detailed account of the events, see Marc Weller, The International Response to the Dissolution
of the Socialist Federal Republic of Yugoslavia, 86 Am. J. Int’l L. 569 (1992). For the action
taken by UN organs, see 1992 U.N.Y.B. 138, 1993 U.B.Y.B. 210, the records of the General
Assembly (55th session, 48th plenary meeting, 1 Nov. 2000, UN Doc. A/55/PV.48, at 26–34),
and Hans-Joachim Schütz, Comment on Art. 5, in I The Charter of the United Nations (2d ed.)
(supra note 115), at 194, 204–06.
 Consequences 157

forward to justify the measures were erroneous, and because it was not based on
Article 5 of the Charter.670
The early drafts of the Charter prepared by the U.S. Government contained
no provisions for expulsion from the Organization, and neither did the U.S.
Tentative Proposals for a General International Organization of July 18, 1944,
which formed the basis of the Dumbarton Oaks conversations. The group draw-
ing up the proposals was of the opinion that if the contemplated security system
was to be effective, certain obligations – like the obligation to settle disputes
peacefully – would have to be observed by all states, whether they were members
of the Organization or not. Member states should not be permitted to escape
such obligations merely by withdrawing. It was considered undesirable for a state
that had been expelled to regard itself as having been freed from its obligations as
a member.671 At the same time, a major reason which in 1919 had accounted for
including a provision for expulsion in the Covenant of the League of Nations, i.e.
the extensive unanimity rule, was no longer present.672 Ironically, it was only at
the insistence of the Soviet Union – the only state excluded by the League of
Nations – that a provision on exclusion was incorporated into the Dumbarton
Oaks Proposals.673
Article 5 of the Charter provides an adequate and sufficient sanction if a state
has breached the law of the constitution.674 Depending on the gravity of the

670
The position adopted by the UN was legally inconsistent. If indeed the SFRY had ceased to
exist, its membership in the UN had ended automatically, and there is no question of a
nonexisting state being represented at the UN or participating in its work. If, however – and this
is how I interpret the events – the SFRY continued to exist under a new name, it was still a
member of the UN, and a suspension of its right to participate in the work of the General
Assembly and ECOSOC would have had to be effected in accordance with Art. 5 of the Charter.
The United States actually sought the activation of the suspension procedure but encountered
Russian and Chinese opposition. ‘The compromise that resulted was SC Res. 777 and GA Res.
47/1. That compromise was rightly critized, on legal grounds, … as being incompatible with
the relevant Charter provisions and past practice’. (Yehuda Z. Blum, 87 Am. J. Int’l L. 248, 249
(1993)).
671
See Russell & Muther, A History of the United Nations Charter (supra note 373), at 362–63.
672
See C.W. Jenks, Expulsion from the League of Nations, 16 Brit. Y.B. Int’l L. 155, 156 (1935):
‘The clause [Art. 16(4) of the Covenant] was introduced … not because it was thought that the
appropriate method of dealing with a covenant-breaking state is to expel it from the League of
Nations and thereby to confess the complete inability of the League to restrain illegal conduct,
but because it was thought that a state in breach of covenant might attempt to block systemati-
cally all League business by voting against every proposal under consideration’.
673
See Sohn, Expulsion (supra note 156), at 1398–99.
674
See also Kelsen, The Old and the New League (supra note 653), at 49, and id., The Law of the
United Nations (supra note 359), at 711–12, 714–15.
158 Chapter Six

violation, suspension may be inflicted for a longer or a shorter period of time. It

is also possible to suspend only certain rights and privileges, leaving others with
the state in question. For these reasons, and in accordance with respective propos-
als already made at the San Francisco Conference,675 Article 6 should be removed
from the text of the Charter.

675
See the comment made by the Dominican Republic regarding ch. V, sec. B, para. 3 of the
Dumbarton Oaks Proposals: ‘It seems advisable that said sanction [i.e., expulsion] be eliminat-
ed, because, on the one hand, the character of the International Organization should be univer-
sal in principle, and on the other hand, the suspension of the exercise of the rights or privileges
inherent in membership in the Organization, together with the sanctions provided for in
Chapter VIII, Section B, paragraph 3, of the aforementioned Proposals, would at least assure all
the effects of expulsion without offering any of its undesirable features’. The United Nations
Conference: Selected Documents (supra note 581), at 123.
Brazil and Ecuador submitted the following amendment to ch. III, para. 1 of the Dumbarton
Oaks proposals: ‘No state may be expelled from the Organization’. Egypt recommended ‘to
avoid … any disposition aiming at expulsion of members’. Referring to ch. V, sec. B, para. 3 of
the Proposals, Belgium, Mexico, Norway, Uruguay and Venezuela likewise suggested to delete
the clause dealing with expulsion. See ibid. at 111–12, 123–25. For the respective discussions in
Committee I/2, see Report of Rapporteur (Membership) of Committee I/2 to Commission I on
Chapter III, 24 June 1945, ibid. at 507–09. Before, in the special subcommittee appointed to
discuss withdrawal, suspension and expulsion, a motion approving the omission of a provision
for expulsion had been carried by a vote of six to five. See Report of Rapporteur (Membership)
to Committee I/2 on Meetings of the Special Subcommittee, May 22 and 23, 1945, ibid.
at 527.
For similar suggestions of the Inter-American Juridical Committee and states represented at
the 1945 Inter-American Conference on Problems of War and Peace in Mexico City, see Sohn,
Expulsion (supra note 156), at 1399–1400.
Conclusion
Only history will tell whether, in which ways, and to what extent a comparison of
the Charter to a constitution may be justified.676
Gaetano Arangio-Ruiz

Constitutional Discourses Past and Present

The use of constitutional language in public international law is today much less
controversial than it was five or, in any case, ten years ago. Today many writers
employ the notions of ‘constitution’ and ‘constitutional law’ as a sort of leitmotif
to capture, name, and also promote the fundamental changes in the international
legal order which we all are seeing but cannot easily express in the language of
(international) law we learned. When I first addressed the subject, I felt obliged
to devote substantial space to showing that there is no compelling reason to
reserve the term ‘constitution’ for the supreme law of a state but that, instead, the
fundamental legal order of any autonomous community or body politic can be
addressed as a constitution.677 I agreed with Philip Allott, a scholar who has pro-
foundly reflected on the meaning of constitutionalism in national societies and in
the international society, when he said that ‘[a] constitution is a structure-system
which is shared by all societies’.678 This understanding entails a certain demystifi-
cation of the institution of the (etatist) constitution and, with it, of the state as
the former constitutional monopolist.
In the meantime, this transfer of constitutionalism to the sphere of interna-
tional law has been widely accepted679—many differences of opinion about how

676
Arangio-Ruiz, The ‘Federal Analogy’ (supra note 230), at 3.
677
See Fassbender, UN Security Council Reform (supra note 29), at 25–35, 68–75. See also supra ch.
1 and ch. 3, The Traditional Dichotomy Between ‘The International’ and ‘The Constitutional’.
678
See Philip Allott, Eunomia: New Order for a New World 164 (1990). See also id., The Concept
of International Law, 10 Eur. J. Int’l L. 31, 35 et seq. (1999), and in The Role of Law in
International Politics: Essays in International Relations and International Law 72–76 (Michael
Byers ed., 2000); and id., The Health of Nations: Society and Law Beyond the State (2002), ch. 12
(pp. 342–79): ‘Intergovernmental societies and the idea of constitutionalism’.
679
See, e.g., Douglas M. Johnston, World Constitutionalism in the Theory of International Law, in
Towards World Constitutionalism (supra note 20), at 3; Brun-Otto Bryde, International
160 Conclusion

exactly such transfer should be understood or constructed notwithstanding.680

The number of authors using constitutional ideas and terms has multiplied—to
the extent that the organizers of the 2006 Conference of the European Society of
International Law in Paris could say in their program that ‘over the last few years
the notions of “international constitution” and “international constitutionalism”
have become real buzzwords in the legal discourse’.681
To some extent, the legal development of the European Union has contributed
to that result.682 In the case of the EU, jurisprudence and legal science had identi-
fied, over the course of the past ten or fifteen years, a gradual ‘constitutionalization’
of a treaty-based order,683 and this characterization was subsequently accepted by a

Democratic Constitutionalism, ibid. at 103; Karel Wellens, Solidarity as a Constitutional

Principle, ibid. at 775; Ronald St. John Macdonald, The International Community as a Legal
Community, ibid. at 853, 859 et seq. (‘The Global Constitution’), 868 et seq. (‘Principles of
Global Constitutionalism’); Erika de Wet, The International Constitutional Order, 55 Int’l
Comp. L. Q. 51 (2006), and von Bogdandy, Constitutionalism in International Law (supra note
177). For recent critical reviews of the extensive literature, see Anne Peters, Compensatory
Constitutionalism: The Function and Potential of Fundamental International Norms and
Structures, 19 Leiden J. Int’l L. 579 (2006); Martti Koskenniemi, The Fate of Public International
Law: Between Technique and Politics, 70 The Modern Law Review 1, 15–19 (2007); and Stefan
Kadelbach & Thomas Kleinlein, International Law – A Constitution for Mankind?, 50 German
Y.B. Int’l L. 303 (2007).
680
For a particularly thoughtful reflection on the problems involved in the ‘development of new
constitutional settlements and languages’ and ‘different constitutional sites and processes’, see
Neil Walker, The Idea of Constitutional Pluralism, 65 The Modern Law Review 317 (2002) (also
published as EUI Working Paper LAW No. 2002/1), and id., Postnational Constitutionalism
and the Problem of Translation (supra note 214) (with a warning about both ‘fatalism about the
prospects of constitutionalism beyond the state’ and ‘follow[ing] the treacherously easy path of
literal translation’).
681
See European Society of International Law, International Law: Do we Need It?, Agenda of the
Biennial Conference in Paris, 18–20 May 2006, Forum 6: The Constitutionalization of
International Law (on file with author).
682
For a proposal of a global constitutionalism built on the EC/EU model and experience, see
Ingolf Pernice, The Global Dimension of Multilevel Constitutionalism, in Essays in Honour of
Christian Tomuschat 973, 993–97 (Pierre-Marie Dupuy et al. eds., 2006).
683
Of the extensive literature, I only mention Eric Stein, Lawyers, Judges, and the Making of a
Transnational Constitution, 75 Am. J. Int’l L. 1 (1981); Joseph H.H. Weiler, Does Europe Need
a Constitution? Reflections on Demos, Telos and the German Maastricht Decision, 1 Eur. L.J.
219 (1995); Jörg Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe (1997); Joseph
H.H. Weiler, The Constitution of Europe (1999); Ingolf Pernice, Multilevel Constitutionalism
and the Treaty of Amsterdam: European Constitution-Making Revisited, 36 Common Market
L.R. 703 (1999); Anne Peters, Elemente einer Theorie der Verfassung Europas (2001); Neil Walker,
The EU and the WTO: Constitutionalism in a New Key, in The EU and the WTO: Legal and
Constitutional Issues 31 (Grainne de Búrca & Joanne Scott eds., 2001); Christian Joerges,
The Law in the Process of Constitutionalizing Europe (EUI Working Paper LAW No. 2002/4);
 Conclusion 161

broad majority of governments and parliaments of member states. In the summer

of 2003, the European Convention adopted the ‘Draft Treaty Establishing a
Constitution for Europe’684 which in an amended version was signed by the Heads
of State or Government of the EU member states on October 29, 2004 in Rome
as the ‘Treaty Establishing the Constitution for Europe’.685 Even if that Constitutional
Treaty did not come into force due to the negative referenda in France and the
Netherlands and was replaced with the terminologically more modest Treaty of
Lisbon of December 13, 2007,686 it is unlikely that the general view of an inherent
constitutionalization of the EU will be abandoned. Some of the ideas developed in
the context of European Community law were carried over to the understanding
of the law of other organizations, especially the General Agreement on Tariffs and
Trade (GATT) and the World Trade Organisation (WTO).687
To mention a second reason for the increasing acceptance of constitutional
ideas in international law, it was understood that one can apply the notion of
constitution to that law without necessarily being a proponent of a ‘world state’
or federation.688 Indeed, ‘[t]he notion of an international community living under
a common constitution has nothing to do … with a super-State which could
claim supremacy over States, relegating them to pure “provinces”’.689 Thirdly, the
constitutionalization of international law is used as a possible remedy for what
is conceived of as the ‘fragmentation of international law’.690 And lastly, as it

Neil Walker, Europe’s Constitutional Momentum and the Idea of Polity Legitimacy, 3 Int’l
J. Const’l L. 211 (2005); and id., Post-Constituent Constitutionalism? The Case of the European
Union, in The Paradox of Constitutionalism (supra note 48), at 247. For a recent systematic
analysis, see, e.g., Principles of European Constitutional Law (Armin von Bogdandy & Jürgen
Bast eds., 2006).
684
See European Convention Doc. 850/03 of 18 July 2003.
685
Official Journal [of the EU] C 310, 16 Dec. 2004.
686
Official Journal [of the EU] C 115, 9 May 2008.
687
See, e.g., Ernst Ulrich Petersmann, Constitutional Functions and Constitutional Problems of
International Economic Law (1991); John H. Jackson, The World Trade Organization: Constitution
and Jurisprudence (1998); Deborah Z. Cass, The Constitutionalization of the World Trade
Organization (2005); Joel P. Trachtman, The Constitutions of the WTO, 17 Eur. J. Int’l L. 623
(2006). For an effort to categorize the relevant scholarship, see Jeffrey L. Dunoff, Why
Constitutionalism Now? Text, Context and the Historical Contingency of Ideas, 1 J. Int’l L. &
Int’l Relations 191 (2005).
688
But see Arangio-Ruiz, The ‘Federal Analogy’ (supra note 230).
689
See Tomuschat, International Law (supra note 177), at 89 et seq.
690
See Jan Klabbers, Constitutionalism lite, 1 Int’l Org. L. Rev. 31, 49 (2004). See also Martti
Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification
and Expansion of International Law. Report of the Study Group of the International Law Commission,
UN Doc. A/CN.4/L.682 of 4 April 2006, para. 334 (the effects of Art. 103 of the UN Charter
‘on the basis of the view of the Charter as a “constitution” ’).
162 Conclusion

happens, some writers jumped onto a wagon which appeared to be increasingly

popular, content with the interesting and progressive ring of the words ‘constitu-
tion’ and, especially, ‘constitutionalization’.
Recently, Jürgen Habermas made an important contribution to a constitu-
tional discourse so far dominated by legal arguments. Re-examining the Kantian
vision of a world republic, he outlined the structure of a ‘political constitution of
a decentralized world society as a multi-level system of governance’.691 Based on a
dispassionate analysis of the present global situation, Habermas sees ‘a conceptual
possibility of a political multi-level system which, as a whole, is not a state but
nevertheless able to safeguard, without a world government, on a supranational
level peace and human rights … and to solve on a transnational level the many
practical problems of “global domestic politics” (Weltinnenpolitik)’.692 He describes
a ‘post-national constellation’ of international affairs as supportive of a constitu-
tionalization of public international law693 and agrees with this writer that in that
constitutional process the UN Charter is of central importance.694 In Habermas’
view, the constitutionalization of international law is a complementary project of
cosmopolitanism—a way to renew or sustain the cosmopolitan project at a time
in which it is threatened by alternative visions of world order, such as a U.S.
hegemonic liberalism or a global Hobbesian order.
However, it would be wrong to mistake this wide academic acceptance of the
‘translation’ of normative concepts of constitutionalism from the state to the non-
state domain for a general acceptance. It is true, at present only a few voices,
mainly from domestic constitutional law, still insist that constitutionalism is
inherently linked to the state and that, accordingly, the distinction between ‘the
constitutional’ and ‘the international’ should be maintained.695 But there is also a
conspicuous silence. It is very likely that there still are many scholars who ‘see
constitutionalism as a state-centred idea in terms of its historical elaboration,
preconditions of settled political community and symbolic associations’.696 ‘Such

691
See Habermas, Konstitutionalisierung des Völkerrechts (supra note 493), at 134.
692
Ibid. at 143. See also at 159 et seq.
693
Ibid. at 176. See also Jürgen Habermas, Die postnationale Konstellation: Politische Essays (1998)
(English translation as The Postnational Constellation: Political Essays (Max Pensky ed. and
transl., MIT Press, 2001) ).
694
See supra text accompanying note 493.
695
See, e.g., Dieter Grimm, Ursprung und Wandel der Verfassung, in I Handbuch des Staatsrechts
der Bundesrepublik Deutschland 3, 36 et seq. (Josef Isensee & Paul Kirchhof eds., 3rd ed. 2003)
(arguing that the international order is characterized by a plurality of unconnected institutions
and legal sources, and that there is so far, on the international level, no entity which could be
constitutionalized (‘kein konstitutionsfähiger Gegenstand’) ). See also id., The Constitution in the
Process of Denationalization, 12 Constellations 447 (2005).
696
See Neil Walker, Postnational Constitutionalism (supra note 214), at 28.
 Conclusion 163

a belief, with its deep roots in the modern Westphalian scheme which sees states
as the major or perhaps only co-ordinates on the global political map, has a resil-
ient political and ideological currency’ (Neil Walker)697—as became visible in the
discussion about the EU Constitutional Treaty.
This traditional view criticizes constitutionalism ‘beyond the state’ because it is
not, as it should be, state-centered, whereas other, more recent scholarship based
on the work of Niklas Luhmann698 finds fault with a constitutionalism built on
or around international or supranational organizations for the very reason that it
is state-centered and does not recognize a ‘constitutionalization of a multiplicity
of autonomous subsystems of world society’ that has given rise to global ‘civil’ (or
‘societal’) constitutions (globale Zivilverfassungen).699
To me, this latter approach is an example of what Neil Walker called ‘constitu-
tional over-reach’—‘the tendency … to overstate the explanatory and transforma-
tive potential of constitutional discourse’.700 In this case, it is not the typical
inclination of constitutionalists but one of scholars of private law. Professor
Teubner’s analysis that states are increasingly unable to regulate and control the
flows of political, economic and social power may be true or false, and his wish to
strengthen the respective roles of civil society commendable or not. But to seize
the idea of constitutionalism to further that cause seems to me methodologically
questionable. It is an act of capture which ignores the ‘problems of translation’ or,
more precisely, the original language in which the constitutional text was
written.
In contemporary ‘mainstream’ international law, constitutional ideas and lan-
guage are most often associated with the concept of jus cogens, or peremptory
norms of international law. Professor Antonio Cassese, for instance, noted that
with jus cogens ‘a body of supreme or “constitutional” principles was created’,701
and Professor Tomuschat referred to norms of jus cogens as belonging to ‘a class of
legal precepts which is hierarchically superior to “ordinary” rules of international
law, precepts which cannot even be brushed aside, or derogated from, by the

697
Ibid. at 28 et seq.
698
See, e.g., Niklas Luhmann, Verfassung als evolutionäre Errungenschaft, 9 Rechtshistorisches
Journal 176, 203 et seq. (1990).
699
See Gunter Teubner, Globale Zivilverfassungen: Alternativen zur staatszentrierten
Verfassungstheorie, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1 (2003);
id., Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory, in
Transnational Governance and Constitutionalism 3 (Christian Joerges et al. eds., 2004); Andreas
Fischer-Lescano, Die Emergenz der Globalverfassung, 63 Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 717 (2003); and id., Globalverfassung: Die Geltungsbegründung der
Menschenrechte (2005).
700
See Walker, Constitutionalism (supra note 32), at 18.
701
See Antonio Cassese, International Law 202 (2nd ed. 2005).
164 Conclusion

sovereign will of two or more States as long as the international community

upholds the values encapsulated in them’.702
It is understandable that the mainstream turns to jus cogens when searching for
constitutional rules in international law. As customary law, jus cogens easily fits
into the traditional system of sources of international law and, what is more
important, international law as a system of rules based on state consent. It is a
concept well recognized in positive international law, not only in the law of trea-
ties where it was invented but also in the law of state responsibility, the law of
sovereign immunity of states and state officials, and international criminal law.
The concept has even been incorporated in domestic constitutional law.703 In the
writings of a number of authors to whom jus cogens is the center of the constitu-
tional idea in international law, the law of the UN Charter ranks below jus cogens704
(the Charter, they say, must be interpreted and applied in accordance with the
standards of jus cogens)—as if those peremptory norms, all of which are based on
rules and values of the Charter, could exist independently of the Charter. Here,
the true relationship between the UN Charter and jus cogens in terms of history,
logic and ideology is turned on its head—a relationship well described by Pierre-
Marie Dupuy: Jus cogens is a logical prolongation of the law of the Charter.
Elle [l’assimilation de la Charte des Nations Unies à la constitution matérielle de
l’ordre juridique international] relève … d’une intuition juste: celle d’après laquelle
les normes effectivement rangées parmi celles de jus cogens se situent dans le pro-
longement historique, logique et idéologique de la Charte des Nations Unies. …
L’affirmation de l’impérativité de ces règles était en réalité largement impliquée par
un texte fondateur adopté au nom des ‘peuples des Nations Unies’ en associant le
maintien de la paix au respect de l’égalité souveraine des Etats et à celui des libertés
fondamentales.
L’innovation opérée à l’article 53 de la Convention de Vienne de l’existence d’un
droit impératif apparaît en réalité, pour qui veut bien revenir à l’esprit des lois,
comme une implication naturelle des principes de la Charte, dont les effets, révélés
à propos du droit des traités, se font et se feront de plus en plus sentir à travers toutes
les structures de la légalité internationale.705

702
See Tomuschat, Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes –
Concluding Observations, in The Fundamental Rules of the International Legal Order (supra note
529), at 425. See also Erika de Wet, The Emergence of International and Regional Value Systems
as a Manifestation of the Emerging International Constitutional Order, 19 Leiden J. Int’l L. 611,
616–17 (2006).
703
See Arts. 193 and 194 of the revised Swiss Federal Constitution of 1999 (providing that amend-
ments to the Constitution may not violate peremptory norms of international law).
704
See, e.g., the separate opinion of Judge E. Lauterpacht, supra text accompanying note 532.
705
Pierre-Marie Dupuy, L’unité de l’ordre juridique international (Cours général de droit interna-
tional public), 297 Recueil des Cours 9, 306–07 (2002). See also ibid. at 310.
 Conclusion 165

But however the relationship between the Charter and jus cogens is understood,
the latter cannot act as a functional substitute for a constitutional law of the inter-
national community as described in the present study. Not only have peremptory
norms, as Professor Cassese reminded us, ‘largely remained a potentiality’ in
state-to-state relations.706 More importantly, it is because of its very nature that
jus cogens cannot play the role that a constitutional law of the international com-
munity is supposed to play. Jus cogens basically consists of a number of prohibi-
tions: States may not commit genocide, wage a war of aggression, engage in slavery
or trading in human beings, or violate the right of peoples to self-determination.
Jus cogens, one could say, is a sort of Decalogue of a secularized world, a minimal
code of behaviour that can be condensed into one rule: ‘Thou shalt not do other
human beings terrible wrongs!’ As a cluster of prohibitions based on state consent,
jus cogens is a perfect expression of what Professor Friedmann called ‘the negative
code of rules of abstention’ which he regarded as typical of the classical ‘interna-
tional law of coexistence’.707 The ‘naked’ prohibitions of jus cogens do not provide
for a procedure – let alone an organizational structure – for their implementa-
tion.708 I agree with Andreas Paulus who concluded his review of jus cogens by
saying that ‘without a procedure for ascertaining its content and applying it to
concrete cases, jus cogens will continue to be more of a mission statement than a
practicable legal instrument’. ‘While it may withdraw legal cover from the most
unacceptable ways of behaviour, jus cogens seems less useful … for the proactive
implementation of community interests or values’.709
Such a proactive advancement of common interests and values of the interna-
tional community is of course the primary purpose of the UN Charter. The
Charter is an authoritative statement of the fundamental rights and responsibili-
ties of the members of the international community and the values to which this
community is committed—a document which is also the basis of the most impor-
tant community institutions. In that respect, no other existing legal text equals
the Charter.

706
See Cassese, International Law (supra note 701), at 210. See also ibid. at 202: ‘So far no state
practice proper has developed with the attendant opinio juris or opinio necessitatis (that is, legal
conviction) of the peremptory character of a specific norm. In particular, no dispute has arisen
between states as to the jus cogens nature of a specific rule. Nor have one or more states insisted
on the peremptory nature of a rule in a dispute with other states … Nor has any international
tribunal, let alone the ICJ, settled any dispute revolving around the question of whether or not
a specific rule must be regarded as belonging to the corpus of norms under discussion’.
707
See Friedmann, The Changing Structure (supra note 14), at 62.
708
The same is true for the – in comparison with jus cogens conceptually even weaker – ‘obligations
erga omnes’. Cf. supra ch. 5, Constitutional Law, Jus Cogens, and Obligations Erga Omnes.
709
Paulus, Jus Cogens (supra note 529), at 330 et seq.
166 Conclusion

However, so far most academics who support, as a matter of principle, the idea
of international constitutionalism prefer to stay in conceptually vaguer worlds.
Their recognition of a constitutional character of the Charter is rather symbolic,
and no specific legal consequences are inferred from it. Back in 1988, Ronald
Macdonald, an eminent Canadian jurist and a champion of a constitutional view
of the Charter, concluded that ‘the majority of international lawyers would proba-
bly classify the Charter as something more than a treaty yet less than a world con-
stitution’.710 It seems that twenty years later this statement is still true. In his General
Course at the Hague Academy of 2000, Pierre-Marie Dupuy called the Charter ‘a
treaty without an equivalent’ (un traité sans équivalent),711 while Christian Tomuschat
styled it a ‘world order treaty’712 the rules of which pertain ‘ratione materiae to the
constitution of humankind’.713 James Crawford approved of a constitutional char-
acterization of the Charter in the sense that it is the constituent instrument of a
distinct legal entity which must be interpreted in accordance with the ‘principle of
effective interpretation’.714 He rejected, however, the idea of the Charter being a
constitution ‘in a stronger sense’—‘a constitution which constitutes a society and
not just an organization, a constitution which is basal and not only bureaucratic’.715
According to Professor Crawford, the Charter lacks ‘constitutional virtues’ because
its lacks constitutional effectiveness.716 While I do not share this view, I am, however,

710
See Ronald St. John Macdonald, The Charter of the United Nations and the Development of
Fundamental Principles of International Law, in Essays in Honour of Georg Schwarzenberger 196,
197 (B. Cheng & E.D. Brown eds., 1988). For a review of the socialist legal literature, which
characterized the Charter as a ‘treaty sui generis’ and an ‘instrument of the highest authority’
(Tunkin), see id., The United Nations Charter: Constitution or Contract? In The Structure and
Process of International Law (supra note 126), at 889, 891. See further id., The Charter of the
United Nations in Constitutional Perspective, 20 Australian Y.B. Int’l L. 205, 228–31 (1999).
711
See P.-M. Dupuy, L’unité de l’ordre (supra note 705), at 217. See also id., Taking International
Law Seriously: On the German Approach to International Law, 50 German Y.B. Int’l L. 375
(2008) (also published as EUI Working Paper LAW no. 2007/34), and Dinstein, Interaction
(supra note 446), at 417: ‘The UN Charter is a treaty. However, it is an extraordinary treaty,
often portrayed as a semi-constitution of the present international community’. However, in
2004, Professor Dinstein more forcefully wrote: ‘The status of the UN Charter as the equivalent
of a constitution of the international community is undeniable at the present juncture’. Yoram
Dinstein, Review of The Charter of the United Nations: A Commentary (2nd ed. 2002), 98 Am.
J. Int’l L. 371 (2004).
712
See Tomuschat, Obligations for States (supra note 176), at 248. See also id., International Law
(supra note 177), at 79: ‘the special character of the UN Charter’.
713
See Tomuschat, International Law (supra note 177), at 88.
714
See Crawford, Multilateral Rights and Obligations (supra note 5), at 371–79.
715
Ibid. at 372, 381.
716
See ibid. at 381: ‘No doubt the existence of a constitutional system and its substantive effective-
ness in fulfilling its goals are different things. But they are not unrelated. For present purposes
it is sufficient to highlight some pervasive constitutional weaknesses, which cast doubt on any
 Conclusion 167

convinced that the success of a constitutional reading of the UN Charter will ulti-
mately not depend on the interpretive and constructive efforts of legal science but
on the fate of the United Nations itself. In that respect, I agree with Professor
Arangio-Ruiz whom I quoted at the beginning of this chapter.
The main problem with the widespread ‘more than a treaty’ approach is that it
is no more enlightening than the sui generis classification of rules or institutions
in which lawyers usually take refuge for lack of something better. The notion
reflects a certain lack of imagination. It is a sign of a legal theory which is a captive
of the traditional triad of sources of international law as listed in Article 38 of the
ICJ Statute: treaties, custom, general principles of law—full stop. But we are
certainly not prohibited from going beyond that narrow catalogue, as much as
international law itself has moved into new spheres since 1945.
It is true, at the beginning of the twenty-first century both the position and the
role of the United Nations in international affairs find themselves under great
stress. Fundamental rules of the Charter, especially the ban on the use of force, are
challenged, and the legitimacy of the Security Council, as the Organization’s insti-
tutional backbone, is called into question. The members of the international com-
munity are far away from uniting their strength in an effort to give new life and
vigor to the Charter system of international governance, as is evidenced by the
unsuccessful attempts at reforming the membership and the voting procedure
of the Security Council. A law student who today reads the Charter must have
a feeling of encountering a distant past, of travelling through time right into black-
and-white photos of FDR and Winston Churchill which he may have seen in a
schoolbook. The old age of the U.S. Constitution evokes his reverence, but that of
the Charter only a feeling of datedness. When he is told that this old Charter occu-
pies a central place in a constitutional structure of the present international legal
community he will react with amazement and disbelief, and understandably so.
On the other hand, many critics of the UN are little familiar with the actual
day-to-day work of the Organization, its range and intensity. They are astonished
when they read, for instance, an average monthly agenda of the Security Council
and realize that more often than not the Council is not the paper tiger for whom
they had taken it. They are surprised to see their home governments taking for
granted the centrality of the United Nations in the system of international diplo-
macy and, yes, increasingly also international governance.
A gap between constitutional rules and constitutional reality is not unusual.
For that reason, the argument that the Security Council actually did not play the
role designated for it in the Charter, or that the Economic and Social Council did

claim that the Charter in the present state of practice can be said to be – even potentially – a
constitution in the strong sense’.
168 Conclusion

not become the center of international economic and social cooperation as envis-
aged by Chapters IX and X of the Charter, does not refute a constitutional quali-
fication of the Charter. Certainly, rules of the Charter are violated, but so are the
rules of a domestic constitution like that of the United States (as is demonstrated
by an endless stream of Supreme Court rulings on the unconstitutionality of
legislative or executive acts) without anybody questioning their constitutional
character. So far, no state or other member of the international community has
denied the binding force of the rules of the Charter. As H.L.A. Hart wrote about
international law in general, ‘[w]hen the rules are disregarded, it is not on the
footing that they are not binding; instead efforts are made to conceal the facts’.717
Many international lawyers apply to the Charter standards of compliance and
enforcement which today in a domestic context no lawyer would apply to crimi-
nal law, or tax law, or, indeed, constitutional law.

Rediscovering a Constitution

‘[I]t would be surprising’, David Kennedy recently said, ‘if the new [constitu-
tional] order were waiting to be found rather than made. … If there is to be a new
order, legal or otherwise, it will be created as much as discovered’.718 I felt caught
in flagrante delicto because that was exactly what I had tried to show—that we can
rediscover a constitutional quality of the Charter which had been there right from
the start but that had fallen into oblivion in the meantime. If the failed European
Constitution of 2004 was a ‘treaty masquerading as a constitution’,719 the UN
Charter, I suggested, is a constitution still dressed in the unfitting clothes of a
treaty. No other garment was available in 1945.
However, David Kennedy’s skepticism is understandable. Whenever a rather
small group of people claims to see something invisible to all the others, suspicion
is well-founded. A contemporary oracle of Apollo seems to be at work, a body of
priests and priestesses revealing a truth which only they themselves understand. If
that truth is the existence of an international constitution, the revelation is espe-
cially astonishing because a constitution really is meant to be something generally
known and accepted as such. ‘Failing to recognize itself as a society, international
society has not known that it has a constitution’,720 Philip Allott once wrote

717
See H.L.A. Hart, The Concept of Law 215 (1961).
718
David Kennedy, The Mystery of Global Governance: Opening Remarks at the Workshop
‘Ruling the World? Constitutionalism, International Law & Global Government’, Temple
University School of Law, 7 Dec. 2007 (on file with author).
719
See J.H.H. Weiler, On the Power of the Word: Europe’s Constitutional Iconography, 3 Int’l
J. Const’l L. 173 (2005).
720
Allott, Eunomia (supra note 678), at 418.
 Conclusion 169

(admittedly having a different idea of an international constitution than I do).

But is this possible, an international society (or community) not recognizing itself
and, accordingly, not knowing its own – existing – legal structure? A scientific
truth, like the law of gravity or the fact that the earth revolves around the sun,
existed before it was discovered. Can the same be said about a constitution as a
set of human-made legal rules?
The answer I proposed is that in 1945, and for a few years thereafter, there was
indeed an awareness of the break the UN Charter meant in the history of inter-
national law and relations, and of the Charter’s quality as the foundational docu-
ment of a new age.721 But there was not enough time for this idea to become
firmly established in the minds of the ‘peoples of the United Nations’, and not
enough time for (most) international lawyers to accustom themselves to a new
form and structure of international law. With the return to old-style power poli-
tics in the unfolding Cold War, the idea became more and more implausible until
it was almost forgotten.
Some voices, it is true, kept on pronouncing the old truth which regained
some credibility after the turn in world history of 1989. How could the interna-
tional society continue to be so deaf? A part of the answer may be that the expla-
nation of the idea of the Charter as a constitution was indeed often oracle-like:
ambiguous or obscure, inconsistent or indecisive. In any case, a veritable dis-
course on the constitutional character of the Charter has only just begun. What
we had before were individual statements of scholars, few and far between, and
not taking note of, or responding to, each other. These statements were usually
prompted by specific purposes, and left behind once the desired effect had been
achieved or not achieved.
I do not want to suggest that a qualification of the Charter as a constitution is
the only possible answer to the problem of identifying its place in the interna-
tional legal order of today. But I believe that in comparison that qualification is
the most plausible answer offered so far. For lack of a better alternative, the idea
of constitutionalism encapsulates much of what contemporary international law,
guided by the UN Charter, is striving for—an organization and allocation of
authority and responsibility on the international plane which is commensurate
with the challenges which the international community is facing today.
The Charter is a part of a more inclusive constitutional process. It must be seen
together with other customary and treaty law of a fundamental nature which
I called the ‘constitutional by-laws’ of the international community, in particular
the two International Covenants on Human Rights, the Convention on the Elim-
ination of all Forms of Racial Discrimination, the Convention on the Prevention

721
See supra, Introduction.
170 Conclusion

and Punishment of the Crime of Genocide, and the Rome Statute of the
International Criminal Court (ICC). In this sense, the Charter can be under-
stood as the ‘framework constitution’ of the international community which is
supplemented and completed by other constitutional rules.722
In a broader sense, the constitutional development of other international
organizations (both of a universal and a regional character) also belongs to that
constitutional process.723 But the constitutionalization of the law of a particular
intergovernmental organization or international régime is an issue to be distin-
guished from that of a constitution of the international community at large which
is the subject of the present study.
To regard the Charter as the constitution of the international community does
not mean to equate it with a national constitution, or the constitution of a highly
integrated regional body of states like the European Union. The constitutional
idea in international law must be understood as an autonomous concept rather
than an extrapolation from domestic constitutional law. In accordance with sub-
sidiarity as a principle which can guide the allocation of competencies in a mul-
tilevel system of governance, a constitution of the international community shall,
and need not, replicate a national or regional constitution. Instead, its contents
depend on the specific tasks and responsibilities of the international community.
As those tasks and responsibilities are different from those of a national body
politic organized for civil rule and government, or those of a regional organiza-
tion with a focus on a common market, the respective constitutional rules must
differ too. In particular, the task of maintaining and restoring international peace,
i.e. peace between independent political communities, is a task peculiar to the
international community. Compared to national constitutionalism, international
constitutionalism is not ‘lite’724 but simply different.
Furthermore, I think it is a profound misunderstanding to equate the advance-
ment of the constitutional idea in international law with an intention to weaken
the institution of the independent state. To accept the existence of a constitution
of the international community does not put the state in any new legal chains.
On the contrary, today it is that constitution which protects the legal authority

722
I introduced that notion in a contribution to the 2006 ESIL Conference in Paris. See Bardo
Fassbender, The UN Charter as Framework Constitution of the International Community, in 1
Select Proceedings of the European Society of International Law 377–82 (Hélène Ruiz Fabri et al.
eds., 2008).
723
Cf. Christian Walter, Constitutionalizing (Inter)national Governance – Possibilities for and
Limits to the Development of an International Constitutional Law, 44 German Y.B. Int’l L. 170,
191 et seq. (2001), who understands the statutes and basic rules of such organizations and
regimes as Teilverfassungen, or ‘partial constitutions’, of the international community.
724
See Klabbers (supra note 690).
 Conclusion 171

and autonomy of every state against unlawful interventions by other states and
international organizations, similar to the protection of fundamental rights and
freedoms afforded to citizens by a state constitution.725 It is the constitution of the
international community which secures the right of a state – as the legal entity
representing a people – to self-determination.
To see the UN Charter, in terms of international law, as the constitution of the
international community is not meant to whitewash the instrument, the UN
Organization, or international law in general. It shall not imply that either of the
three has reached a state of perfection or anything close to it. It is not an exercise
in self-congratulation of the legal community. Much more modestly, it is an effort
to identify and interpret, by means of legal science and legal language, the deep
structural change of the international legal order that has taken place in 1945 and
thereafter, and to draw the appropriate conclusions. In other words, labeling the
Charter a ‘constitution’ alone does not make the world a better place. Taking the
constitutional character of the Charter seriously can, however, be a starting point
for moving towards conditions in which the values pronounced by the Charter –
a life of all peoples in peace and tolerance, the protection of human rights and
freedoms, justice, social progress, the equality of states and peoples – are better
and more evenly realized. “The use of the term ‘constitutional’ in a descriptive
way … will have a normative connotation, implying a commitment to managing
public affairs in accordance with fundamental values and through certain for-
mally legitimate procedures”.726
Perhaps the era of the United Nations is drawing to a close,727 and the peoples
of the United Nations realize only now, looking back, that they had a constitu-
tion. But even in this case the idea of a constitution of the international commu-
nity will survive because it is both indispensable as a legal device and unrivalled
as a symbol of the unity of humankind realizing its interdependent existence in
one world. If the future landscape of international relations will know a legal order
at all, as an order based on the principles of self-determination, autonomy and
equality of all nations, a universal constitution will have to be an essential ele-
ment of that order, whether the word is used or not. And just as much as the idea

725
See Fassbender, Sovereignty and Constitutionalism (supra note 476), at 128 et seq.
726
See Herman Belz, Changing Conceptions of Constitutionalism in the Era of World War II and
the Cold War, 59 J. Am. Hist. 640, 669 (1972).
727
For a description of possible alternatives to a constitutional international order, understood as a
continuation of the ‘Kantian project’, see Habermas, Konstitutionalisierung des Völkerrechts
(supra note 493), at 178 et seq. As such alternatives, the author identifies (1) a U.S. ‘hegemonic
liberalism’, (2) a ‘neoliberal global market society’ with marginalized states, (3) a ‘postmarxist
scenario of a scattered imperial rule without a capital’, and (4) a global Grossraumordnung as
described (or proposed) by Carl Schmitt.
172 Conclusion

of a constitution of the international community will survive, the contribution

the UN Charter has made to this idea’s development is inextinguishable in the
book of world history. As Jürgen Habermas said, ‘the League of Nations and
the United Nations are great, even though risky and reversible, achievements on
the arduous way to a political constitution of world society’.728
So whatever the fate of the UN Charter will be in the years to come, whether
it will be rediscovered, and made effective, as a constitution or not—in retrospect
the Charter will be acknowledged as the twentieth century’s most important
contribution to a constitutional history of the world.

728
See Habermas, Konstitutionalisierung des Völkerrechts (supra note 493), at 145.
Synopsis
Introduction
The UN Charter in Constitutional Perspective

The subject of the present book is international constitutional law, understood as

a sub-discipline of public international law. The constitutional law of the interna-
tional community is built on and around the Charter of the United Nations. The
UN Charter has a double constitutional character — it is the constitution of the
United Nations as an international organization, and also, and even more impor-
tantly, the constitution of the international community as a whole.
Good arguments support the view that the UN Charter has had a constitu-
tional quality ab initio. But, at any rate, in the course of more than sixty years of
UN history, a constitutional predisposition of the Charter has been confirmed
and strengthened in such a way that today the instrument can rightly be called a
constitution. The Charter is the constitution of the international community in
its entirety, binding on all subjects of international law. Such an understanding of
the Charter has significant repercussions on its legal status and reach, its interpre-
tation, amendment, and possible future reform.

Chapter 1
‘Constitution’, and its Association with the Modern State

At the beginning of the twenty-first century, ‘the triumph of constitutionalism

appears almost complete’ (Richard S. Kay). Almost every state in the world has a
written (or ‘documentary’) constitution. Notwithstanding different approaches
in constitutional theory and practice, constitutions of states presently in force
almost universally present themselves as a composite of fundamental norms gov-
erning the organization and performance of governmental functions (‘frame of
government’) and the legal relationship between the government (broadly under-
stood) and the citizens of the state in question. In a ‘bill of rights’ citizens are
generally accorded certain fundamental rights and freedoms. More recently, also
statements of policy goals (or constitutional directives) regarding, e.g., social wel-
fare, culture, international peace or the protection of the natural environment,
174 Synopsis

feature prominently in constitutional texts. A constitution shall, in principle

for an indefinite period of time, provide a legal frame and guiding principles
for the political life of a community. It is (positive) law attributed to the sover-
eign (i.e., in a democratic state the people), binding on all state institutions
(and in that respect paramount), extending to all members of the society in ques-
tion and, generally, governing the exercise of all public authority. More often
than not it is arranged in a single document and is more difficult to amend than
other law.
The American and European ‘constituted’, or ‘constitutional’, state of the nine-
teenth and twentieth century gave the formal notion of constitution a specific
substantial meaning which by now has largely superseded other denotations.
Human rights and political freedoms of citizens, sovereignty and self-determination
of the people, democracy and separation of powers, rule of law — these partially
overlapping terms describe the distinctive content which the notion has
acquired.

Chapter 2
The Transfer of the Constitutional Idea to the Sphere of International Law:
Different Approaches

Many writers have used the notion of ‘constitution’ and ‘constitutional law’ with
reference to international law and, more particular, the United Nations (Charter).
But only few have made an effort systematically to explain both the reasons and
the consequences of the adoption of constitutional language and ideas. Three
schools of thought can be identified to which such systematic efforts can be
attributed: first the school founded by the Viennese jurist Alfred Verdross, who
started out from Kelsen’s ‘pure theory of law’ but later both approached and influ-
enced the mainstream, second the New Haven School (or ‘policy-science approach’)
with Myres McDougal and Michael Reisman being the most prolific authors for
the subject under discussion, and thirdly (and partially influenced by the first) a
group of scholars, led by the late judge of the ICJ Hermann Mosler, his successor
Bruno Simma and Christian Tomuschat, advocating the ‘doctrine of international
community’. A fourth approach, styled ‘constructivism’, was developed by
Nicholas Onuf.
Of those different schools or approaches, today the ‘international community’
school is by far the most influential in the literature of international law, in par-
ticular the European literature. My own efforts, emphasizing the importance of
the UN Charter, are mainly based on it. The term ‘the international community’
has become commonplace, but more so in continental Europe than in Great
Britain or the United States.
 Synopsis 175

Alfred Verdross and Bruno Simma have used the term ‘constitution’ in a
normative sense. To them, the constitution of the international community is a
set of rules of international law which take precedence over other norms because
their existence is a precondition of the validity of the latter from a logical and
a legal point of view. At the same time, constitution is seen as an outcome of
history or, in other words, a result of an actual agreement among states at a par-
ticular point of time. According to Verdross and Simma, the UN Charter replaced
the previous constitution of the non-organized community of states when it
gained universal acceptance. For the first time in human history, the world com-
munity had a written constitution.
To the New Haven School founded by Myres S. McDougal and Harold D.
Lasswell, the UN Charter is a result of a ‘constitutive decision’ because it identi-
fies authoritative decision-makers as well as procedures for decision-making.
However, the Charter is understood as only a part of a larger ‘world constitutive
process’, and its adoption as just the beginning of a continuing process of consti-
tutional change in the world community.
The ideas first advanced by Judge Hermann Mosler, which were built upon an
understanding of the international society as a legal community, represent a cau-
tious transition from traditional doctrine to a more progressive theory. Judge
Mosler stressed the formal side of a constitution, that part concerned with the
creation, validity and termination of law. He did not attribute constitutional
quality to the UN Charter. In contrast, Christian Tomuschat put more emphasis
on the substantive side of a constitution as a framework determining certain
common values of the constituted community. To him, the principal feature of
the international constitution is its non-consensual character: The constitution of
the international community is the whole of those basic rules – whether proce-
dural or substantive – which a state is bound to observe irrespective of its own
will. The Charter is described as one of several ‘world order treaties’, i.e. a treaty
intended to concretize the constituent principles of the international legal order.
Styled ‘constructivism’, Nicholas Onuf developed an approach to law which
seeks to reconcile the analytical tradition and Myres McDougal’s jurisprudence.
He applied H.L.A. Hart’s concept of law to what he called the constitution of
international society.

Chapter 3
The International Community and its Constitution

Although today constitutionalism is not uncontested on a domestic level, the

concept still has much to offer international law. Here, its primary purpose – the
organization and allocation of authority and responsibility with the aim of
176 Synopsis

establishing and preserving peace and legal order – is still of central importance.
Classical goals of constitutionalism – like the security and freedom of the indi-
vidual members of the community, the prevention of an individual use of physical
force as a means of law enforcement, transparency and unambiguousness of the
law, separation of powers, and law-making procedures adequate to the needs of
the community – are yet to be achieved on the international plane. In addition,
the notion of constitution offers a coherent explanation of current developments
in international law which more and more emphasize interests of ‘the interna-
tional community as a whole’ over those of individual states.
The idea of constitution has transcended its Western origins. The universal
recognition of fundamental human rights, including the dignity of the individual
human being, which is a cornerstone of constitutionalism, and a widespread
belief in democracy suggest that there is a substantial stock of common constitu-
tional convictions in an international family of constitutional states. In this trans-
formed global environment, a constitution of the international community has a
good chance of succeeding, provided that it does not impose on nations a too
narrowly defined form of government.
There is no compelling reason for reserving the term ‘constitution’ for the
supreme law of a (sovereign) state. This etatist constitutionalism, according to
which a particular group of people can live under but one constitution, corre-
sponds to a concept of disconnected, self-sufficient states which is not only refuted
by the real world we live in but also explicitly rejected by the many state constitu-
tions which provide for the possibility or even goal of supranational integration.
I agree with Konrad Hesse who broadly defined a constitution as the fundamen-
tal legal order of a public community, or body politic. The basic rules of a system
of governance about the nature and scope of its authority, the allocation of
responsibilities and powers to specific organs, and the way these powers are to be
exercised amount to, and can legitimately be called, a constitution, even if the
system in question is an international or supranational organization, or the inter-
national community as a whole. Having untied the largely mythical bond between
state and constitution, one can also apply the constitutional concept to universal
international law without necessarily supporting a ‘world state’. An international
constitution so understood is not bound to put an end to interstate relations
based on international law.
The juxtaposition of treaty and constitution in the traditional literature is far
from self-evident. In the classical works of Hobbes, Grotius, Locke and Rousseau
governmental power is established by a free association and agreement of indi-
viduals. There is another combination of treaty and constitution in the case of
several independent states establishing a federation or confederation by way of an
international treaty, and simultaneously giving this new body a constitution.
German legal doctrine called such an agreement a Bundesvertrag (‘federal treaty’).
 Synopsis 177

Although the expression was not used with regard to intergovernmental organiza-
tions of the twentieth century, it can generally give expression to the process of
creating a new international or supranational body by way of an international
treaty.
In the international sphere there is an interaction and reciprocal strengthening
of the two concepts of community and constitution, a dialectical relationship
between the two which makes it futile to ask what has been, or must be, first.
Governments and civil society have come to acknowledge the international
community as a normative reality. The community is the legal entity obligations
erga omnes are owed to, and it is the legislator of jus cogens. The international legal
community can no longer be described as a Genossenschaft, or association of equals
not subordinated to any higher authority and exclusively joined together by
agreement. The international community is more than the sum of its constituent
parts — it does not express a mere volonté de tous but a volonté générale. In con-
trast to the old society of states, the new international community includes all
subjects of international law, and ultimately all human beings. Particular (or spe-
cial) interests must yield to community interests, and a state is no longer at liberty
to leave the community. The community is united by a set of shared values, and
its high degree of cohesion is expressed by the attribute of distinct legal
personality.
To Carl Schmitt, every association of political communities required a certain
homogeneity, or ‘substantial similarity’, of its members. However, variety, differ-
ences and opposite interests and perspectives are the characteristic features of life
on this planet. Schmitt’s concept of a ‘substantial similarity’ contrasts sharply
with the very idea of an international community. What is necessary to maintain
that community is only a certain minimum agreement on how to behave. The
prohibition of the use of force, the obligation to respect fundamental human
rights and freedoms, and the duty to protect the natural environment — these are
rules based upon universal agreement, notwithstanding the fact that they are not
always observed. The international community thus is a community based on an
agreement on a limited set of fundamental rules and values. It provides a suffi-
cient social basis for a constitutional charter which, as an element of a broader
process of integration, will further strengthen the unity of the community it
governs.
In principle, there cannot be a community, understood as a distinct legal entity,
in the absence of a constitution providing for community organs. Legal personal-
ity requires the ability to perform legal acts. Without organs entitled to voice the
opinions, and to apply and enforce the general laws of the international commu-
nity, the process of the community’s ‘constitutionalization’ is not complete. The
United Nations is the primary institutional representative of the international
community. It furnishes that community with effective organs. Compared to
178 Synopsis

‘functional’ universal organizations established to further cooperation of states in

narrowly defined fields, the UN has a much broader, and highly political, man-
date. It is the only international organization with a universal membership of
states. Moreover, it is the only global institution with potentially strong executive
powers and a judicial organ with a significant jurisdiction.

Chapter 4
The UN Charter as a Constitution

Neither Professors Verdross and Simma nor the representatives of the interna-
tional community school convincingly explained the position of non-member
states under the UN Charter — a question which continues to be of a high
theoretical and doctrinal importance in spite of the fact that today the UN has
acquired a quasi-universal membership. Both Verdross and Simma, and the inter-
national communiy school shied away from taking the decisive step and qualify-
ing the Charter as a constitution that is binding upon all members of the
international community.
My inquiry into a possible constitutional quality of the UN Charter is based
on a normative notion of constitution. The point of reference is an ‘ideal type’ of
constitution established according to the methodology of Max Weber. Weber’s
‘ideal type’ is built by intensifying and combining certain features of a phenom-
enon or development to form a theoretical construct, a standard to which reality
then is compared. A number of features of an ideal constitution can be recog-
nized in the Charter:
(1) The drafting of the Charter was a true constitutional moment in the history
of international law. The delegates assembled at San Francisco were confronted
with a profound transformation of the international order which had already
begun with World War I and the League of Nations but had intensified enor-
mously during World War II, and they sought to stabilize the new situation. The
new emphasis laid on the protection of human rights, the broad powers conceded
to the Security Council, as well as Articles 2(6) and 103, all indicate a renuncia-
tion of the traditional concepts of sovereignty and bilateralism.
(2) The Charter is secondly an expression of a constitutional program: It out-
lines a new world order in which international peace and security, broadly under-
stood, are safeguarded, and friendly relations among nations promoted.
(3) It is a third constitutional feature of the UN founding instrument that it
was styled a ‘charter’, a name denoting an especially elevated class of legal instru-
ments. In 1945, the term was understood as an equivalent of ‘written constitution’.
It is this expression the founding fathers of the United Nations chose and not, for
instance, ‘covenant’ which had been the name of the statute of the League of
Nations and which stands for an agreement or promise.
 Synopsis 179

(4) A description of the UN Charter as the constitution of the international

community presupposes the existence of a constituent power which, in a domestic
context, has been defined as the power of a people to make the constituted author-
ity of the state. With the opening words ‘We the Peoples of the United Nations’
the drafters of the Charter phrased the text in terms of a constitution enacted by
the peoples represented at the UN founding conference. The fact that formally
the Charter was established as an international treaty does not impair its consti-
tutional quality. ‘We the Peoples …’ is a manifestation of the ‘higher meaning’ of
the Charter. Accordingly, in the international community the constituent power
lies with the ‘Peoples of the United Nations’. The use of that constituent power
in 1945 resulted in the UN Charter as a constitutional form.
(5) The constitutional history of the international community since 1945 has
been shaped by, and taken place in, the United Nations. The UN was the ‘natural
forum’ for all the great debates which have influenced and redefined global
governance. It is sufficient to mention as key-words the right of peoples to self-
determination, decolonization, human rights, the fight against racial discrim-
ination, and the protection of the natural environment.
(6) It is a minimum quality of any constitution that it provides for a system of
governance, or a performance of the three basic functions of governance, that is to
say, of making and applying the law and of adjudicating legal claims. These three
functions are performed by the international community. The UN Charter
includes express provisions relating to legislation, the administration of law, and
adjudication. It assigns different (and limited) responsibilities and powers to dif-
ferent organs and establishes, to some degree, a system of checks and balances.
(7) Generally, a constitution defines the members of the respective community.
Chapter II of the Charter sets out rules regarding the acquisition, suspension and
loss of membership in the Organization. However, today these rules are incom-
plete as far as membership in the international community is concerned (provi-
sion is made only for a membership of sovereign states), and out of line with the
actual state of law as regards the admission and expulsion of states. The Charter
has left behind the traditional state-centric view of international law, by gearing
its rules to the ultimate goal of the general welfare of peoples and individual
human beings. Ultimately, the Charter is meant to be the constitution of all
members of the human family.
(8) It is another characteristic feature of a constitution that it establishes a
hierarchy of norms. Rules claiming to be the law of the respective society must be
in conformity with the standards determined by the constitution. With its Article
103, the Charter clearly gives expression to such a hierarchical model. The unique
position of the Charter in the present international legal order is recognized and
reflected by many rules of international treaty law. These rules are mainly intended
to secure, in the context of a particular regime, the primacy of the Charter over
‘any other international agreement’ (Article 103). Other rules shall ensure that
180 Synopsis

the Security Council effectively discharges its duties as set out in the Charter. In
conclusion, states have constantly and consistently affirmed the unique place of
the Charter in the present structure of international law, accepting, in fact, the
existence of an international legal order under the United Nations.
(9) A constitution characteristically aspires to eternity. The Charter too makes
such a claim. It only provides for amendment, not for termination. Further, there
is a striking difference between the amendment procedure of the Charter (Articles
108 and 109) and the rule traditionally applied to the amendment of interna-
tional treaties — the requirement of consensus among the parties to the treaty.
Notwithstanding its opposition to a particular amendment, a UN member state
is bound by the same once it has come into force. Even by withdrawing from the
Organization a state cannot escape its constitutional obligations.
Although the Charter has given up the requirement of a unanimous ratifica-
tion of an amendment, it nevertheless is difficult to amend in practical terms — a
typical constitutional quality Thomas Franck called ‘indelibleness’. Articles 108
and 109 require an affirmative vote of two thirds of the members of the UN in
the General Assembly or the General Conference, respectively, and a ratification
of an amendment by two thirds of the members including all the permanent
members of the Security Council. Accordingly, in spite of many efforts to amend
the Charter there have been so far only three cases in which the procedure of
Article 108 was successfully applied.
(10) An outstanding feature of the ideal type of constitution is the principle of
universality or inclusiveness — a constitution applies without exception to all
members of the community it purports to govern. The community in question
here is the international legal community. It includes, in particular, ‘sovereign’
states regardless of their membership in the UN Organization. This raises the
question of whether a state which did not apply for membership although it
could have done so can be regarded as committed to observing the Charter. I sug-
gest that this question must be answered in the affirmative. It is a functional
interpretation of the concept of sovereignty – as the basis of the pacta tertiis non
nocent rule – which explains and legitimizes the Charter’s universal reach.
It is concluded that a comparison of the Charter with the ideal type of consti-
tution reveals a similarity sufficiently strong to attribute a constitutional quality
to the instrument.

Chapter 5
Conceptual Distinctions

If there exists a constitutional law of the international community, built on and

around the UN Charter, as I attempted to explain in the previous chapters, that
law must be distinguished from other categories of norms of international law,
 Synopsis 181

especially norms which are similarly oriented towards general interests of the
international community.
At the beginning of the chapter, I recall the dual constitutional function of the
UN Charter: The Charter is both the constitution of the United Nations as an
international organization and the constitution of the international community
as a whole. While the substantive rules of the Charter belong to ‘both constitu-
tions’, the non-substantive rules are generally rules of the Organization only.
The UN Charter is further characterized as a normative constitution. It does not
describe the condition of the international community as it is but as it ought to
be. Norm and reality, the normative and the ‘real’ constitution can be, or become,
inconsistent. However, the gap between a constitutional norm and constitutional
practice may not become too wide. Otherwise, the effectiveness of the norm is in
danger. Articles 108 and 109 of the Charter do not only provide for a possibility
of amending the Charter; they are also setting member states the task ‘of review-
ing the present Charter’ (Article 109, para. 1) in order to readjust it to new condi-
tions and challenges, and thus ensure its effectiveness.
As the constitution of the international legal community, the Charter embraces
all international law. There is no room for a category of ‘general international law’
independently existing beside the Charter. Instead, the Charter is the supporting
frame of all international law and, at the same time, the highest layer in a hierar-
chy of norms of international law. The community of states which enacted the
Charter had the authority partly or completely to repeal the then existing law.
Pre-1945 international law could not remain in force without the Charter acting
as an intermediate. In that regard, norms of constitutional character must be
distinguished from other, non-constitutional general rules. In the case of the
former, one should speak of an ‘incorporation’ of rules by the Charter because thus
the unity of the constitutional order devised in 1945 is emphasized. Rules belong-
ing to the latter group, such as customary rules of the law of the sea, may better
be referred to as customary international law upheld by the Charter. The same
distinction between international constitutional law and other norms of interna-
tional law applies to treaty law tacitly confirmed by the Charter in 1945.
Constitutional rules which preceded the Charter have become a part of it, and
they are subject to the relevant rules of interpretation and amendment. They are
valid solely in the form the Charter has given them. Neither can new customary
law come into being which would amend, or derogate from, Charter law. This
already follows from Article 103 of the Charter which teleologically can only be
read to give the Charter a priority over all conflicting obligations of states, regard-
less of their formal source. There is no parallel existence of customary constitutional
rules and Charter rules.
If the Charter, despite its claim to last eternally, were to lose its legal force, it
would remain to be seen whether it would be replaced by a new constitution, or
whether international law would return to a pre-constitutional state. At any rate,
182 Synopsis

the continuity of the legal order would be interrupted. Even if rules presently
being in force ‘remained’ valid, only their contents, but not the reason for their
validity, would remain the same. If there were a new constitution, it could give
validity to the norms in question; otherwise, the validity of these norms would
depend on their having been newly accepted by the members of the international
community.
Attributing constitutional quality to the Charter does not imply that other
international agreements concluded after 1945 cannot be of constitutional
importance too. Nor does it exclude the possibility of such an importance of
post-1945 rules existing in the form of customary law or general principles of law.
Tentatively, I suggest that these treaty and customary rules can be ascribed con-
stitutional quality if, and to the extent that, they characterize in detail, or further
develop, the constitutional law of the Charter. One can speak of ‘constitutional
by-laws’ of the international community because it is law of an accessory nature,
adding to, and implementing objectives of, the law of the Charter. From this it
follows, first, that Charter provisions cannot be repealed by such later by-laws.
The rules in question would only pretend to constitutional quality; the law of the
Charter would prevail. Second, there cannot be constitutional treaty or custom-
ary law supplementing the Charter in areas where the Charter has set out com-
prehensive rules leaving no room for additional prescriptions.
The realms of international constitutional law and jus cogens are only partially
identical. In spite of an overlap between norms of jus cogens and constitutional
law presently in force, the two concepts have different origins and objectives.
Constitutional law can be described as the common denominator of the interna-
tional community. It is the body of rules and principles defining, in form and in
substance, the basis of the international community, and indicating the general
course the community has decided to steer. Jus cogens, on the other hand, places
a set of rules beyond the reach of states when they bilaterally or multilaterally
exercise their treaty-making function. As such, its potential scope is wider than
that of constitutional law. Theoretically, any rule, not only a rule concerning the
constitutional structure of the international community, can be made a peremp-
tory norm of international law. However, at present the number of rules which
undisputedly have a jus cogens quality is much small than the number of consti-
tutional rules.
There is also a partial substantive identity of constitutional law and obligations
erga omnes. In principle every constitutional rule has an erga omnes effect in
the sense that it is directed towards and binding on all members of the interna-
tional community, and that all members have a legal interest in its observance
by all other members. But the specific obligations which are currently recognized
as obligations erga omnes represent a subset of international constitutional law.
 Synopsis 183

The category of erga omnes rules was advanced to give states who, according to
traditional international law, were not affected by a breach of rules, a legal interest
in their protection. This way, pivotal community values should be safeguarded in
the absence of community organs. A recognition of the constitutional character
of the Charter, which implies the existence of effective organs of the international
community, profoundly changes that picture. That existence of community
organs allows us to speak of an organized entity possessing a right, as well as the
actual ability, to demand the performance of obligations erga omnes. These obliga-
tions appear to be an interim phenomenon in the constitutional development of
the international community. In a constitutional community equipped with fully
effective organs, the term ‘obligations erga communitatem’ will replace a notion
which emphasized the individual states’ authority to react to a violation of com-
munity values and interests.

Chapter 6
Consequences

From the constitutional character of the UN Charter a number of specific conse-

quences can be inferred. This chapter addresses some of them. In part, they relate
to the Charter as such, for instance its interpretation and amendment, while oth-
ers pertain to the relationship between the Charter and other rules of interna-
tional law, i.e., the place of the Charter in the present international legal order.
The Charter is a living instrument. It is the basis of a system which is in con-
stant movement. In general, its life can well be explained in terms of a procedural
understanding of a constitution. As examples of constitutional change through
political practice one can mention the Uniting for Peace resolution of 1950, the
codification and development of Charter principles and rules by the General
Assembly, the expansion of the concept of international peace and security in the
practice of the Security Council, the invention of peacekeeping operations, the
good offices function performed by the Secretary-General, and the development
of procedures of monitoring the observation of human rights by states. This is not
to say that any deviation from the text of the Charter can be justified by under-
standing the instrument as a constitution. Quite the opposite is true.
Constitutional interpretation of a Charter provision must aim to establish, at
the time of interpretation, its objective meaning in the light of the concrete
circumstances of the case in question, thus taking account of the dynamic char-
acter of any constitution (‘dynamic-evolutionary’ or ‘objective’ interpretation).
Consequently, the starting-point for an interpretation of the Charter is the text as
a manifestation of what is objectively laid down in the instrument. Teleological
184 Synopsis

interpretation is of special significance. It gives due weight to the object and pur-
pose of a particular Charter rule and of the Charter as a whole. It is mainly
through teleological interpretation that implied powers of the United Nations
were established. The travaux préparatoires are only to be considered in exceptional
circumstances.
The international legal community is made up of all subjects of international
law — individuals, peoples and minorities, sovereign states, states enjoying a lim-
ited international legal personality, intergovernmental organizations, belligerent
parties, as well as special entities like the Holy See. This is what Judge Mosler
called the ‘international legal community in its wider meaning’. It includes eve-
rybody endowed with a capacity to take part in international legal relations. All
these legal persons are entitled to participate in the interpretation of the Charter;
they constitute the respective ‘interpretive community’. However, since the
Charter is mainly interpreted in the day-to-day process of its application, the
relevant work of UN organs carries special weight.
Every constitution presents the difficult problem of distinguishing interpreta-
tion and adaptation, progressive development and amendment. All these are dif-
ferent forms, or degrees, of constitutional change. While it is evident that every
‘living document’ experiences change and must, to some extent, embrace it in
order not to become a dead letter irrelevant to the present, a constitution never-
theless must channel and also limit the process of transformation. It is one of the
main purposes of a written constitution to ensure a higher degree of certainty
within the law than that prevailing in a system of customary rules. The question
of amendment highlights the distinguishing quality of a constitution (even if it
was formally created by way of a treaty) as compared to a typical international
treaty, which is central to my argument.
Articles 108 and 109 of the UN Charter set up an exclusive régime for Charter
amendments. The Charter can only be amended in the ways provided therein.
Moreover, the articles set out precise procedures for amending the Charter. They
define participants and necessary majorities as well as the point of time in which
an amendment comes into force. All these elements remain in doubt in the case
of ‘informal’ amendments. The constitutional character of the Charter also re-
quires the participation of the international legal community at large in Charter
amendments. A free and open discussion of the constitutional issues in question
is necessary to enable non-governmental actors to form, clarify, and voice their
opinions.
Different from a number of state constitutions, the Charter does not explicitly
lay down any ultimate content-related bounds to amendments. Articles 108 and
109 are concerned with procedure, not with substance. However, a constitutional
reading of the Charter suggests the existence of implicit, unwritten limits. The
 Synopsis 185

Charter is based on certain values and principles most of which are set out in the
Preamble and Articles 1 and 2. Deprived of those fundamental rules, the Charter
would cease to be what it is today. Constitutional change of a legal system
committed to values and goals like peace, human rights and self-determination of
peoples – i.e., generally speaking, to a restriction and rationalization of govern-
mental power – is inherently limited by the responsibility for maintaining the
substance of this order of liberty and confined power. Consequently, the Charter
does not authorize member states to abolish, for instance, the commitment of the
international community to ‘fundamental human rights’ or to ‘the dignity and
worth of the human person’, or the principle of sovereign equality of states, or the
prohibition of the use of force. Such ‘amendments’ would result in a legal order
so different from the constitution associated with the name of the United Nations
that this constitution would have to be regarded as discontinued. The inadmis-
sibility of certain amendments follows from the outstanding importance of the
relevant norms in the constitutional order established by the Charter.
The issue of a reform of the UN Security Council, which has been a matter of
intense discussion and diplomatic negotiations since the beginning of the 1990s,
can serve as an example of the constitutional limits which the bodies endowed
with the power to amend the Charter must respect as pouvoirs constitués. The
Charter does not make mandatory any specific kind of Council reform. However,
from a constitutional perspective a restructuring of the Council and its voting
procedure should advance as much as possible a realization of the aims and pur-
poses of the international community as set out in the Charter. A Council reform
should, in particular, promote international peace and security, and the dignity
and worth of the human person.
Understanding the Charter as a constitution that applies to all members of the
international community offers the best possible explanation of the demands
made on non-member states in Articles 2, para. 6, and 103. It also explains the
corresponding practices of the Security Council both of taking action against
such states on the basis of Chapter VII and of directing its decisions to ‘all States’,
irrespective of their membership in the UN Organization.
In the course of the Yugoslav crisis, the Security Council, acting under Chapter
VII of the Charter, for the first time made demands on a non-state entity. As the
Charter is binding upon all members of the international community, the Council
was fully entitled to do so. It may direct its decisions to belligerent and insurgent
bodies, whose limited international legal personality is generally acknowledged,
as well as to intergovernmental organizations of a regional or universal character,
regardless of whether all of their members have ratified the Charter. Inasmuch as
the activity of individuals has a bearing on the maintenance of international peace
and security broadly understood, they, too, can be addressees of Security Council
186 Synopsis

decisions. The same applies to associations and corporations established under

private law, including multinational corporations. It is not impossible to conceive
of a situation in which the conduct of such a corporation is of critical importance
to the preservation of world peace.
If today all states – including newly independent states – are obliged to heed
the rules of the Charter, as the constitution of the international community, then
all states are also entitled to membership in the organs of that community. The
principle of universality of the UN, understood as an expression of such entitle-
ment, follows from the constitutional character of the Charter. Article 4, para.
1 must therefore be read as entitling to membership every independent and
‘peace-loving’ state. UN practice has generally been in accordance with this prop-
osition of a constitutional right to membership.
However, at the present stage of the constitutional development of the interna-
tional community an obligation of a state actively to participate in the work
of the community organs cannot yet be assumed. Accordingly, a state is free
not to apply for membership in the UN. Just as a state can abstain from becom-
ing a member of the UN, it can also (under certain circumstances) leave the
Organization or temporarily withdraw from its institutions. But a state cannot
leave the international community, and it cannot escape the rules set out in its
constitution.
An understanding of the UN Charter as a constitution also has consequences
for the interpretation of its Articles 5 and 6. Just as a state cannot evade its obliga-
tions under the constitution of the international community, it cannot be expelled
from the constitutional community as such. This membership in the interna-
tional community must be distinguished from a state’s participation in the work
of the community organs. A (temporary) suspension ‘from the exercise of the
rights and privileges of membership’, as provided for in Article 5 of the Charter,
is acceptable from a constitutional point of view. In contrast, it seems inadmissi-
ble permanently to exclude a state from the organic structure of the community as
established by the Charter. Permanently to prevent a state who wishes to partici-
pate in the work of the community organs from such participation is incompatible
with the very idea of an international community living under a constitution.
This view is confirmed by the fact that in the history of the United Nations not a
single state ever was expelled from the Organization.
Article 5 of the Charter provides an adequate and sufficient sanction if a state
has breached the law of the constitution. Depending on the gravity of the viola-
tion, a suspension may be inflicted for a longer or a shorter period of time. It is
also possible to suspend only certain rights and privileges, leaving others with the
state in question. For these reasons, and in accordance with respective proposals
already made at the San Francisco Conference, Article 6 should be removed from
the text of the Charter.
 Synopsis 187

Conclusion
(1) Constitutional Discourses Past and Present

The use of constitutional language in public international law is today much less
controversial than it was five or, in any case, ten years ago. Today many writers
employ the notions of ‘constitution’ and ‘constitutional law’ as a sort of leitmotif
to capture, name, and also promote the fundamental changes in the international
legal order which we all are witnessing but cannot easily express in the language
of (international) law we learned. However, it would be wrong to mistake the
wide academic acceptance of the ‘translation’ of normative concepts of constitu-
tionalism from the state to the non-state domain for a general acceptance.
In contemporary ‘mainstream’ doctrine, constitutional ideas and language
are most often associated with the concept of jus cogens. In contrast, the UN
Charter is classified by many academics as something ‘more than a treaty’ yet less
than an international constitution. The main problem with that approach is
that it is no more enlightening than the sui generis classification of rules or institu-
tions in which lawyers take refuge for lack of something more concrete or
imaginative.

(2) Rediscovering a Constitution

In 1945, and for a few years thereafter, there was an awareness of the break the
UN Charter had meant in the history of international law and relations, and of
the Charter’s quality as the foundational document of a new age. But there was
not enough time for this idea to become firmly established in the minds of the
‘peoples of the United Nations’.
To qualify the Charter as a constitution is not the only possible answer to the
problem of identifying its place in the international legal order of today. But
I believe that in comparison that qualification is the most plausible answer offered
so far. To see the Charter as the constitution of the international community is
not meant to whitewash the instrument, the UN as an organization, or interna-
tional law in general. It shall not imply that either of the three has reached a state
of perfection. Much more modestly, it is an effort to identify and interpret, by
means of legal science and legal language, the deep structural change of the inter-
national legal order that has taken place in 1945 and thereafter, and to draw the
appropriate conclusions.
Whatever the fate of the UN Charter will be in the years to come, whether
it will be rediscovered, and made effective, as a constitution or not — in retro-
spect the Charter will be acknowledged as the twentieth century’s most important
contribution to a constitutional history of the world.
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Index
A B
Abi-Saab, Georges 69–70
Ackerman, Bruce 86 n.355
Act of Chapultepec (1945) 112 n.480
Admission of a State to the U.N. case
71 n.293, 131 n.561, 151 n.652
Aegean Sea Continental Shelf case 87 n.360
Aerial Incident case. See Lockerbie case
aggression
definition of 130
prohibition of 125, 126, 153. See also use
of force, prohibition of
Ago, Judge Roberto 127
Akehurst, Michael 138 n.590
Allott, Philip 52, 59, 83 n.342, 85, 94 n.394,
100 n.427, 127 n.547, 159, 168
Alvarez, Judge Alejandro 6 n.19, 71 n.293,
131, 135 n.582
Al-Qaida, sanctions against.
See targeted sanctions
American Revolution 19, 24, 58, 88,
65 n.268
Annan, Kofi A. 129
antagonism between East and West
73, 107 n.305, 137
Antarctic Treaty (1959) 50
apartheid, prohibition of 153
Application of the Convention on the
Prevention and Punishment of the
Crime of Genocide case 125 n.532,
126 n.538
Arangio-Ruiz, Gaetano 59 n.230, 65 n.270,
74 n.310, 87 n.362, 92 n.385, 159, 167
Aristotle 56, 117 n.497, 129 n.511
Articles of Confederation and perpetual
Union (1777) 58 n.228, 63
Asbeck, F.M. van 1
Atlantic Charter (1941) 89
Aubert, Jean-François 59 n.232
Bailey, K.H. 3 n.7
Barcelona Traction case 44, 67, 125–127
Basic Law. See Constitution
of Germany (1949)
basic norm. See Grundnorm
Bedjaoui, Mohammed 69, 104 n.446
Bernhardt, Rudolf 34 n.115, 114 n.490
Black, Justice Hugo 21
Bleckmann, Albert 33 n.111
Blum, Yehuda Z. 130 n.558, 154 n.666,
156 n.669
Brierly, James L. 3, 65 n.270, 73 n.305,
130 n.553
Briggs, Herbert W. 154 n.667
Brunner, Stefan 138 n.590
Brunner v. Federal Government 58 n.228
Bryce, James 24, 133 n.527, 142 n.607
Bull, Hedley 66 n.275, 73 n.306
Bund 72
Bundesstaat 58 n.228
Bundesvertrag 63–64
Bustamante y Rivero, Judge José Luis 138
C
Cassese, Antonio 76, 87 n.359, 163, 165
Certain Expenses of the U.N. advisory
opinion 107 n.460, 132 n.567, 133,
137 n.586, 138
Charte constitutionelle (1814) 89
Charter
as an equivalent of written constitution 89
meaning in English law 88
Charter of Economic Rights and Duties of
States 130
Charter of Liberties 88
Charter of Liberties and Privileges (1683) 89
Charter of the Organization of African
Unity 112 n.480
206 Index
Charter of the Organization of American
States 105, 112 n.480
Charter of the United Nations
amendment 35–36, 107–109,
122–23, 136–45
and constitutional by-laws 122–23
and customary international law 118–21
and general international law 118–22
as a living instrument 130–31
as a treaty-constitution 64
as a world order treaty 48, 166
as higher law 103, 118, 124 n.530
as the constitution of the international
community 77–115
basic values and principles 144
checks and balances in 100, 131, 146
collision of Charter obligations with
jus cogens 124–25
constitutional characteristics 86–115, 127
delegates execution of its law to member
states 95
drafts prepared by U.S. Government 157
Dumbarton Oaks Proposals 151 n.652,
153 n.662, 157
enemy states 150
hierarchy of constitutional law in 144–45
human rights in 48
implied powers 6, 133–34
incorporation of international law by
119, 122, 139
‘informal change’ 138 n.592
interpretation 5, 131–136
name 88–89
non-member states, position of 45, 78–82,
109–15, 147–48, 150
opening words 89
preamble 88, 90–92, 102, 126 n.537, 144,
146 n.627
precedence 24, 33, 104, 137 n.584
prohibition of use of force in 40, 48, 73,
87 n.361, 112–3, 115, 117, 144, 167
purposes of the organization in 76
reform of the Security Council. See United
Nations Security Council, reform
revolutionary grand design of 110
right of veto. See right of veto in the UN
Security Council
rules on membership 103, 150–58
self-defense, right of 79–81, 105, 113,
121 n.520
substantive and procedural part 123
suspension from exercise of rights of UN
membership 154–57
unamendable provisions 156–58
China, membership in UN 154
Churchill, Sir Winston 89, 167
Claude, Inis L. 80 n.330, 167
common heritage of mankind 56, 94
community of states. See international
community
Competence of the General Assembly advisory
opinion 135 n.582, 136 n.583
confederation 58 n.228
consented constitution 62
constituency for peace, peoples
of the world as 101
constituent instruments of international
organizations 5
constitution
amendment 21, 107–09, 136–144
analysis of constitutions presently
being in force 22–24
and modern state 18, 58–60
and organization 74–76
and rationalization of exercise
of power 18–19
and revolution 119 n.509
and secondary rules of recognition,
change and adjudication 50–51
and sovereignty 103
and subordination 85
as an autonomous legal order 64
as a compact 62
as a decision 17–18
as a frame of government 23
as an institution of public law 85
as a living institution 21, 129–30
as a process of integration 16, 38 n.137,
60, 65, 74, 82
as a public and open process 16, n.45, 59
as a set of meta-rules 45
as a statement of policy goals 23
as a symbol of national unity 54
as a written instrument 25 n.82, 89,
103 n.442, 136
as defined by Carl Schmitt 14 n.34, 17
 Index 207

as defined by Hans Kelsen 15–16 France

as defined by Hermann Heller 17–18 (1791) 25
as defined by Konrad Hesse 16 (1793) 107, 143
as defined by Rudolf Smend 16 (1814) 89, 141, 143 n.615
as higher law 19–20, 23–24 (1875) 141
as the fundamental legal order of a public (1958) 141
community 23, 59 Germany
aspires to eternity 107 (1867) 63
bill of rights 23 (1871) 63
consented constitution 62 (1919) 140
customary constitutional law 139 (1949) 58 n.228, 95, 99 n.416,
defines members of constitutional 101 n.431, 140–42
community 101–03 Greece
definition 13–26 (1864) 141
distinction according to the respective (1975) 141
community 61 Italy (1947) 60 n. 239, 141
distinction between treaty and 62, 139 Japan (1946) 69–70, 141 n.605
establishes hierarchy of norms 103–04 Korea, Republic of
flexible and rigid 24, 133 n.572 (1948) 141
‘global civil constitutions’ (globale (1960) 141
Zivilverfassungen) 163 North German Confederation (1867) 63
historical origins 55 Norway (1814) 63
ideal type 82–85 Portugal
implementation and enforcement 25 (1911) 63
in an absolute and a relative sense 17 (1976) 63
in a formal and a material sense Saxony, Kingdom of (1831) 62
15, 17–18, 22, 29–30, 46, South Africa, Republic of (1996) 56–7
53 n.213, 122 Spain (1978) 60 n.239
in a logical and a positive sense 15 Switzerland
in a normative sense 33, 83 (1874) 144
inclusiveness 109 (1999) 99 n.416, 142
integrative function 16, 38 n.137, 60, 65, Turkey
74, 82 (1924) 141
interpretation 134–35 (1961) 141
non-consensual character 47, 64 n.259 (1982) 141
plurality of constitutions 61 United States of America 7 n.23, 19,
substantial meaning 24 58 n.228, 63, 64 n.262, 88–91,
substantive concept 46 95, 101 n.431, 132, 133,
unamendable provisions 140–45 138 n.588, 167, 168
universal spread of concept 56–57 Virginia (1776) 24
universality 109 Württemberg (1819) 62
Western roots of concept 56 constitution of the international
Constitution of community
Brazil (1891) 141 amendment 124. See also Charter of the
China (1923) 141 United Nations, amendment
Ecuador (1861) 141 and basic functions of governance 45–46,
European Union 61, 63 n.256, 106, 49, 94–101
109, 142, 160, 170 and erga omnes obligations 125–28
208 Index
and general international law 32, 79,
118–23
and jus cogens 123–25
and permanent organs 74–76
as a legal framework of basic rules 47
as a set of axiomatic premises of the
international legal order 47–48
as a substantive constitution 122
as seen by Alfred Verdross and Bruno
Simma 28–36, 77–78, 118
as seen by Christian Tomuschat 45–49
as seen by Hermann Mosler 41–45
as seen by Nicholas Onuf 50–51
as seen by the New Haven School 36–41
constitutional by-laws 122–23, 169
customary constitutional law 139
hierarchy of constitutional law 148–49
jurisdiction of the ICJ 121 n.516
non-consensual character 47, 54–55
relationship of community and
constitution 64–71
substantive and procedural part 123
UN Charter as the 77–115
constitutionalism ‘lite’ 170
constitutional by-laws of the international
community 122–23, 169
constitutional conventions 22
constitutional equality of states 47, 48, 49,
107, 110–14, 144
constitutional moment in international
law 86, 92
constitutional supremacy 19, 23–24, 53
constitutions of domestic
communities 61–62
constitutions of international
organizations 3–4, 6, 60–61, 142
constitutive process 36–41
constructivism 50–51
consuetudo est servanda 32
contingent prescriptions 49
Convention on the Prevention and
Punishment of the Crime of Genocide
6 n. 19, 48, 122, 125 n.523, 126 n.538,
131 n.561
Council of Europe 4 n.14, 104, 105
Court of First Instance of the European
Communities, Kadi and Yusuf cases
104, 107 n.457, 150
covenant, meaning of 89
Covenant of the League of Nations. See
League of Nations, Covenant
Crawford, James 2 n.5, 6 n.19, 86 n.356,
119 n.508, 125, 166
customary constitutional law 139
D
Darfur 74
Déclaration des droits de l’homme et du citoyen
(1789) 25
Declaration of Independence (1776) 89
Declaration on Principles of International
Law concerning Friendly Relations and
Cooperation among States in accordance
with the Charter of the United
Nations 102, 105, 112, 120 n.511, 130
Declaration on the Occasion of the Fiftieth
Anniversary of the United Nations 68
dédoublement fonctionnel 75, 79
Delbrück, Jost 126 n.542, 127 n.547
Deutscher Bund 4, 63, 64 n.261
Dicey, A.V. 22
Draft articles on state responsibility 67 n.
276, 106, 118 n.508, 125 n.534, 127
nn.544, 547
Draft statute for an international criminal
court 68 n.276
droit relationnel and droit institutionnel 70
Dumbarton Oaks Proposals 151 nn.652–3,
153 n.662, 157
Dupuy, Pierre-Marie 164, 166
Dupuy, René-Jean 41 n.157, 68 n.281, 70,
131 n.561
E
East Timor case 67 n.277, 126
Effect of Awards of Compensation made by
the UN Administrative Tribunal advisory
opinion 104 n.446, 133 n.517
Elementarverfassung 46 n.178
enemy states 150
environment
duty not to cause grave environmental
harm 48
obligation to protect the 73
Security Council, general
competence, 96

equality of states. See constitutional equality
erga omnes obligations 31, 44, 70, 123–128,
165 n.708
Erzberger, Matthias 7 n.24
etatist constitutionalism 59, 159
European Community Treaty 104,
142 n.608, 150
European Constitution (2004). See Treaty Estab-
lishing a Constitution for Europe (2004)
European Convention for the Protection of
Human Rights and Fundamental
Freedoms 50, 104
European Parliament 142
European Union 50, 58 n.228, 60, 61,
63 n.256, 99, 106, 109, 142, 160, 170.
See also Constitution of European Union
Ewigkeitsklauseln. See constitution,
unamendable provisions
F H
Falk, Richard 38 n.134, 38 n.135, 39 n.145,
81 n.334, 86 n.356
federal state 58 n.228, 60, 62, 99, 101,
140 n.599
Federalist Papers 19–20
Feller, A.H. 3
First Charter of Virginia (1606) 89 n.371
Fischer Williams, Sir John 108–109
Fisheries Jurisdiction case 136 n.584
fragmentation of international law 161
Franck, Thomas M. 5, 47 n.181, 83, n.340,
85 n.354, 94 n.392, 98 n.415, 109, 114,
115 n.492, 130 n.557, 151 n.651
French Revolution 24, 58
Friedmann, Wolfgang 4, 8, 27, 84 n.347,
85 n.349, 149 n.644, 165
Friendly Relations Declaration.
See Declaration on Principles
of International Law
Frowein, Jochen Abr. 49–50, 68 n.279, 75,
144 n.619
G Hobbes, Thomas 62, 162
Gemeinschaft 71 n.293
general international law, relationship
between UN Charter and 118–23
general principles of law 33, 48, 54,
84, 122, 167
Index 209
genocide, prohibition of 67 n.277, 123–25,
165. See also Convention on the Prevention
and Punishment of the Crime of Genocide
Genossenschaft 70
Germany
as a federal state 58 n.228, 60, 99, 140 n.599
constitutional movement of the nineteenth
century 62
membership in UN 150, 152–53
Gesellschaft 71 n.293
Gildersleeve, Virginia C. 90
Ginther, Konrad 46 n.178
good offices function, performed by UN
Secretary-General 98, 130
Grotius, Hugo 62
Grundgesetz. See Constitution of Germany
(1949)
Grundnorm 7, 15, 29 n.93, 42, 112
Habermas, Jürgen 115, 162, 171 n.727, 172
Hackworth, Judge Green H.
104 n.446, 133 n.571
Häberle, Peter 16 n.45, 56 n.223, 59,
82, 134 n.578, 140 n.598, 141
Hague Convention Respecting the Laws and
Customs of War on Land (1907) 120
Hamilton, Alexander 19–20
Harper v. Virginia Board of Elections 21 n.69
Hart, H.L.A. 7, 50, 103 n.442, 119, 168
Hegel, Georg Friedrich Wilhelm 73
Heller, Hermann 14, 17–18, 23 n.75,
65–66, 73
Henkin, Louis 34 n.115, 46 n.178,
73 n.304, 111 n.479, 144
Herdegen, Matthias J. 142
Hesse, Konrad 16, 23 n.75, 26 n.86,
41 n.155, 59 n.231, 65, 138 n.587, 143
hierarchy of norms, as a constitutional
characteristic 103–107
higher law, Covenant of the League of
Nations and Charter as 103, 118
Holy See 76 n.315, 134
homogeneity, concept of 72–73
human rights
erga omnes obligations 125–6
European Convention 50, 104
210 Index
International Covenants 48, 169
monitoring 130
obligations under UN Charter 48, 73
Universal Declaration 102, 130
I legislative function 95–97
Idealtypus see Ideal Type
‘Ideal Type’ 82–83, 109, 114
incorporation of international law by UN
Charter 119–22
individual criminal responsibility in
international law 43 n.165, 66 n.276,
68, 84, 100, 164, 170
individuals as addressees of Security
Council decisions 149–50
Indonesia, withdrawal from UN 154–55
injured state 68 n.280, 79 n.325, 127 n.547
Inter-American Conference on War and
Peace (1945) 112 n.480, 158 n.675
Inter-American Juridical
Committee 158 n.675
international community 7, 41–50
as a legal entity 45, 70
as a normative reality 70
as a system of governance 45, 94–101
as addressed by UN bodies 67–69
as based on agreement on elementary
rules and values 73
as including non-state actors 71
as organized and represented by the
UN 74–76
as the civil society of international
law 68 n.278
as the guardian of fundamental values 69
basic functions of governance in the
45, 46, 49
basic rules 47, 74, 122, 170 n.723
can no longer be described as a
Genossenschaft 71
constitution. See constitution of the
international community
constitutional by-laws 122–23
constitutional history 94
constitutional principles 30–32, 35 n.121,
44, 48, 87, 116, 151, 163
constitutionalization 18, 50, 55, 75, 128,
160–63, 170
doctrine of 41–50
executive function 99
hierarchy of norms in 103–07
homogeneity of members 69–71
institutions 74–76
judicial function 99–100
membership 101–03, 109–15, 134–35,
139, 147–51
non-organized and organized 32–33
relationship between constitution
and 64–71
international community school.
See international community, doctrine of
international constitution. See constitution
of the international community
International Convention for the Suppression
of Terrorist Bombings (1998) 68
International Convention for the Suppression
of the Financing of Terrorism (1999) 97
International Court of Justice 5, 99–100, 146
jurisdiction over constitutional
issues 121 n.516
standing before 127
International Covenant on Civil and Political
Rights 48, 169
International Covenant on Economic, Social
and Cultural Rights 48, 169
international crimes 67 n.276, 119 n.508,
125, 127 n.547
International Criminal Court, Statute of. See
Rome Statute of the International Criminal
Court (1998)
International Criminal Tribunal for the
Former Yugoslavia 100
International Labour Organization 4
International Law Commission 5, 66 n.276,
68 n.280, 106, 118 n.508, 124 n.530, 125,
127 n.547
international legal community.
See international community
International Monetary Fund 4
international organizations
as addressees of Security Council
decisions 148–50
as organs of the international
community 75
See also constitutions of international
organizations

international peace and security, definition
of 97, 130
international public order 42–44
international social contract
34 n.115, 46 n.178
international society. See international
community
International Status of South-West Africa advi-
sory opinion 6 n.19, 84 n.346
International Tribunal for Rwanda 100
interpretive community 134
Iraq 81 n.333
Isensee, Josef 58 n.227, 88 n.365, 129 n.550
J law of the sea 48, 120
Jacqué, Jean-Paul 139 n.594, 142 n.610
Jefferson, Thomas 89, 107
Jellinek, Georg 23, 58 n.223, 59 n.237,
83 n.341
Jenks, C.W. 4 n.12, 157 n.672
Jessup, Judge Philip C. 132, 147
judicial control of the Security Council.
See judicial review
judicial review
in domestic law 20, 24, 99–100
of Security Council acts 99–100
jus belli 72
jus cogens 30–31, 43–44, 48, 51, 70,
123–28, 140, 163–65
K 104, 121, 124–25
Kadelbach, Stefan 160 n.679
Kadi case. See Court of First Instance of the
European Communities
‘Kantian project’ 162, 171 n.727
Kellogg-Briand Pact (1928) 29,
113 n.485, 120
Kelsen, Hans 7, 8, 14–16, 18, 27–29, 42, 56,
61, 86, 87 n.359, 92, 97 n.413, 100 n.424,
111 n.477, 114, 119 n.509, 121 n.521,
124 n.530, 125 n.533, 127 n.547,
132 n.562, 137 n.586, 147, 148 n.634,
151, 157 n.674
Kennedy, David 168
Köck, Heribert Franz 34 n.115, 104 n.446,
110 n.473, 114 n.491, 148 n.635
Korea, membership in UN 152
Koskenniemi, Martti 40 n.154, 161 n.690
Index 211
Kuhn, Thomas 8
Kuwait, liberation of 81
L
Laband, Paul 58 n.228
Lachs, Judge Manfred 48 n.191,
70–71, 75, 100 n.426
Land, Island and Maritime Frontier
Dispute case 104 n.446
Lasswell, Harold D. 28, 36–40
Lauterpacht, Elihu 100 n.424,
124–25, 164 n.704
Lauterpacht, Sir Hersch 5 n.19, 43, 44,
75 n.314, 79, 84, 88, 103, 147 n.633
League of Nations 2, 7, 9, 28–32, 38 n.132,
72, 86, 89, 99, 108, 113 n.485, 157, 172
Covenant 31, 89, 90, 99 n.420, 103, 108,
118, 124 n.530, 132
draft constitution 7
expulsion from 155 n.668, 157
Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory
advisory opinion 67 n.277, 126 n.538
Legal Realism 13, 21
limited constitution 19–20, 29
limited government 133
Llewellyn, Karl 21 nn.66–67
Locke, John 62, 73, 322
Lockerbie case 100 n.426, 101,
Loewenstein, Karl 117–18
Loughlin, Martin 90
Luhmann, Niklas 163
M
Maastricht case 58 n.228
Macdonald, R.St.J. 77, 115 n.492,
118 n.505, 148 n.634, 166
Madison, James 19, 20, 51
Magna Carta (1215) 62, 88
Mandela, President Nelson 57
Marbury v. Madison 20
Marshall, Chief Justice John 20
Mbeki, Deputy President Thabo 57
McDougal, Myres S. 27, 28, 36–40, 50,
132 n.564, 134 n.577
McNair, Sir Arnold 47, 84
212 Index
Military and Paramilitary Activities case.
See Nicaragua case
monism 28
Mosler, Judge Hermann 3 n.11, 27, 28,
41–46, 48, 52, 71 n.293, 81, 134
multilateral treaty reservation
(U.S.) 121 n.516
multi-level system of governance 162, 170
municipal law, resort to in international
law 83–85
Murphy, John F. 81 n.333
N Rawls, John 62
Namibia (South West Africa) advisory
opinion 132, 136 n.584, 137
nation-state, limits of 60
New Haven School 36–41
Nicaragua case 75 n.314, 104 n.446, 120–21
non-intervention principle 48, 87 n.361
non-state entities 148–49
O representativeness, as a principle of UN
objective territorial regimes 50
obligations arising for states without or
against their will 47–48
obligations erga communitatem 128
obligations erga omnes. See erga omnes
obligations
ordre public international 43
organs of the international
community 74–76
P proposals for reform 9
‘package deal’ (1955) 152
pacta sunt servanda 29 n.93, 30, 32,
46 n.178, 77, 119
pacta tertiis nec nocent nec prosunt
79, 110–11, 114
paktierte Verfassung 62 n.249
par in parem non habet imperium 112 n.480
Paulus, Andreas L. 41 n.157, 52 n.210, 165
Pellet, Alain 85 n.348, 125 n.533
peremptory norms of international law.
See jus cogens
Pérez de Cuéllar, Javier 101
Pernice, Ingolf 60 n.238, 62 n.247, 160 n.682
politische Einheit 71
pouvoir constituant 17, 66 n.273, 71, 143
pouvoir constitué 17, 142 n.612, 143, 145
principal-agent idea 127 n.547
private law, resort to in international
law 83–85
public community 16, 59
public interest norms 126 n.542
R
racial discrimination, prohibition of and
protection from 67 n.277, 94, 126,
153, 169
Randelzhofer, Albrecht 80 n.331
reception, as procedure of law-
creation 119 n.509
regionalism 60
Reine Rechtslehre 15 n.39
Reisman, W. Michael 21 n.67, 27, 36–41,
100 n.428, 130 n.556
Reparation for Injuries Suffered in the Service
of the U.N. advisory opinion 133
reform 146
Reservations to Convention on Genocide
advisory opinion 6 n.19, 131 n.561
Responsibility, principle of 30
Ress, Georg 34 n.115, 85 n.349
right of veto in the UN Security Council
80, 147
as a means of constitutional control
100, 131
‘informal amendment’ 138 n.592
Robinson, Jacob 118 n.506
Rolin, Henri 93, 124 n.530
Rome Statute of the International Criminal
Court (1998) 67 n.276, 68, 106, 170
Roosevelt, President Franklin D. 89, 167
Rousseau, Jean-Jacques 62, 72
rule of law 18, 25, 41, 48, 105, 113
Rwanda 74, 100
S
San Francisco Conference (1945) 2, 39,
86, 90–93, 105, 111, 135 n.581, 150,
153–54, 158
Satzung 4 n.12, 58 n.229
Scelle, Georges 28 n.90, 47 n.181, 71, 75, 79

Schachter, Oscar 125 n.533
Scheuner, Ulrich 23 nn.74–75, 24 n.77,
25 n.84, 26, 117 n.499, 144 n.623
Schmitt, Carl 14, 17, 29 n.93, 63 n.252,
70–72, 142, 171 n.727
Schwarzenberger, Georg 6 n.19, 47
Schwebel, Judge Stephen 105 n.450
self-defense, right of 79–81, 105, 113,
121 n.520
self-determination, right of peoples to 51,
67 n.277, 75 n.311, 87 n.361, 94, 112,
124, 126, 144, 153, 165
Sereni, Angelo Piero 70 n.289
Sieyès, Emmanuel Joseph 143
Simma, Judge Bruno 27, 28 n.90, 31–36,
41–42, 44, 48–49, 52, 77–80, 82,
85 n.348, 118, 119 n.509, 138 n.590
Skubiszewski, Krzysztof 5, 75 n.314
slavery, prohibition of 67 n.277,
69, 124, 126, 165
smart sanctions. See targeted sanctions
Smend, Rudolf 14, 16, 23 n.75, 38 n.137,
60, 65–66, 74 n.310, 82, 144 n.621
societas 66, 71 n.293
South Africa, Republic of 56–57
arms embargo 82 n.337
exclusion from participation in
UN 155 n.668
South West Africa (Second Phase)
case 84 n.346, 127 n.545, 132
South West Africa—Voting Procedure advisory
opinion 5 n.19, 75 n.314, 79–80
Southern Rhodesia 81 n.335, 153 n.661
sovereign equality 47–49, 87 n.361,
107, 111–14, 144, 146. See also
constitutional equality
sovereignty 8, 30, 50–51, 86, 103,
109–12, 134, 146
Soviet Union 56, 154, 157
expulsion from League of Nations
155 n.668
Staatenbund 58 n.228
subjects of international law
134, 149–50
subsidiarity, principle of 60 n.240, 170
Switzerland
as a non-member state of the
UN 110 n.471
Index 213
as a federal state 60, 99
system of governance 45, 46 n.178, 60,
94–101, 131, 162, 170
T
Taiwan (Republic of China)
76 n.315, 110 n.471
Taliban, sanctions against.
See targeted sanctions
targeted sanctions 98
terrorism, as threat to international peace 97
Teubner, Gunter 163
Tönnies, Ferdinand 71 n.293
Tomuschat, Christian 27, 45–50, 52,
53 n.213, 54, 64 n.259, 65, 69, 71 n.293,
79 n.325, 82, 95–96, 104, 122 n.523,
126 n.541, 139 n.594, 148 n.636, 163, 166
trading in human beings, prohibition of 124
transparency 56, 76, 96 n.406, 146 n.626
Treaty Establishing a Constitution for Europe
(2004) 61, 63 n.256, 109, 161, 163, 168
Treaty of Lisbon (2007) 60, 99 n.417, 106,
109, 161
Treaty on European Union (1992 as
amended) 60, 99 n. 417, 106
Treaty Providing for the Renunciation of War
as an Instrument of National Policy (1928).
See Kellogg-Briand Pact
treaty-constitution 63–65
Truman, President Harry S. 2, 5
U
ubi societas, ibi jus 66
United Kingdom, constitutional law 46, 53
United Nations
admission and expulsion of member
states 150–58
as an open system 94
as a system of checks and balances 100,
131, 146
as a system of governance 94–101, 131
as a war coalition in World War II 150
as the primary institutional representative
of the international community 75–76
exclusion of South Africa from participa-
tion in 155 n.668
executive power 97–99
judicial power 99–100
214 Index
legislative power 95–97
membership 76, 101–03, 150–58
micro-state question 152
non-member states, position of
45, 78–82, 109–15, 147–48, 150
‘package deal’ (1955) 152
peacekeeping operations 130
purposes 76
separation of powers in 100
Southern Rhodesia, action
concerning 81 n.335
specialized agencies 76
suspension from exercise of rights of
membership 155–58
universality 109–115, 151
withdrawal from 153–55
United Nations Convention
on the Law of the Sea 48
United Nations Economic and Social
Council 76, 109, 167
administrative tasks 98
United Nations General Assembly
administrative tasks 98
as an organ of the international
community 75
exclusion of South Africa from
participation in 155 n.668
lawmaking capacity 95
role 94
United Nations Secretary-General
good offices function 98, 130
role 98
United Nations Security Council
addressees of decisions 148–50
competence regarding
claims to self-determination 153
general regulation 96–97
grave violations of human rights 127
protection of the environment 96
weapons of mass destruction
96–97
control of 99–101
executive function 97–98
judicial function 100
judicial review of acts 99
legislative function 95–97
legitimacy 167
non-member states, action against 78–82
reform of, consequences of constitutional
character of UN Charter for 145–47
right of veto. See right of veto in the
UN Security Council
right to enact binding law 95–97
role after Cold War 19
Soviet Union, withdrawal from 154
targeted sanctions. See targeted sanctions
United Nations Trusteeship Council,
administrative tasks 98
United States of America,
as a federal state 60
Uniting for Peace resolution 130
universal community of states.
See international community
Universal Declaration of Human Rights
102, 130
use of force, prohibition of 40, 48, 73,
87 n.361, 112–13, 115, 117, 144, 167
V
Vagts, Detlev F. 6 n.23, 134 n.578,
135 n.579
Vattel, Emer de 13, 23 n.75, 143 n.615
Verdross, Alfred 27–36, 41–42, 44, 46 n.179,
48–49, 72, 77–80, 82, 118–19
Verfassungsvertrag 62–63
veto power. See right of veto in the
UN Security Council
Vienna Convention on Diplomatic
Relations 48, 107
Vienna Convention on the Law of Treaties 4,
66, 68, 105 n.452, 108 n.463, 110, 121
n.515, 123 n.529, 124, 135–137, 140
Vienna Convention on the Law of Treaties
Between States and International
Organizations or Between International
Organizations 105 n.452, 149 n.641
Vitzthum, Wolfgang Graf 34 n.115, 79 n.325
voting in the UN Security Council. See right
of veto in the UN Security Council
W
Waldock, Sir Humphrey 34, 43, 118,
122 n.522
Wall Opinion. See Legal Consequences of the
Construction of a Wall in the Occupied
Palestinian Territory advisory opinion

Walker, Neil 13, 53 n.214, 55 n.218, 90,
115 n.493, 142 n.611, 160 n.680,
162 n.696, 163
Weber, Max 10, 83, 86, 88 n.365
Weeramantry, Judge Christopher Gregory
100 n.426, 101, 104 n.446,
121, 125 n.533
Weiler, Joseph H.H. 53 n.214,
63 n.257, 74, 168 n.719
Weimar Constitution. See Constitution
of Germany (1919)
Weltinnenpolitik 162
Wiener Schluss-Akte (1820)
4 n.13
Wilson, President Woodrow 7
Index 215
Wood, Gordon S. 19, 62
World Health Organization 4
World Intellectual Property Organization 4
World Trade Organisation 161
world order treaties 48–50, 122, 139, 166
Y
Yugoslavia, Federal Republic of,
membership in UN 156
Yugoslavia (former) 74
Yusuf case. See Court of First Instance
of the European Communities
Z
Zaire (Congo) 74