The United Nations Charter as the Constitution of the International Community

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 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA Fees are subject to change. printed in the netherlands

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

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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 international lawyers, political scientists and UN specialists. In particular, my constitutional reading of the UN Charter contributed to setting off a lively and still ongoing debate about the existence and meaning of an ‘international constitutional 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 standards 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 foundations 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 separation also allows me to examine in more detail whether there exists today a global 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 attention 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

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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 friendship 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 medieval 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 biographical 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 commerce. In 1938, after Nazi Germany had invaded Austria and extended the persecution 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 experience 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 affidavit 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

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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 responsibility 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 realistic 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 international 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 subdiscipline 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 constitutional 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

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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). 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 organization between the poles of centralization and federalism. 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.

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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 compared 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 opinions. 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

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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 deposited. By 27 Dec. 1945, the process of ratification by all the fifty-one signatory states was completed. 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). 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 initial 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.’ 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).

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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 considered the possibility of the Charter being ‘a constituent act of the peoples of the United Nations … rather [than] an agreement freely entered into between governments’,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 instrument 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’ international agreements.11 This explains official expressions like ‘Constitution of the

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‘Des bouleversements causés par deux guerres mondiales a surgi l’une des créations les plus caractéristiques 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). See Goodrich & Hambro (supra note 4), at 19 (emphasizing, however, the ‘treaty character’ of the Charter). ‘… institutions which, while they cannot yet be regarded as giving a “constitution” to the international 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.). 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 confederation. … [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 constitutional 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). 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

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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 purposes and competences of a distinct entity established on the basis of public international 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 intergovernmental organizations, first and foremost the United Nations.14

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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 internationales, in Mélanges offerts à Charles Rousseau: La communauté internationale 153 (1974). 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’. 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. 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.’

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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 constitution 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 manner different from other law—treated as being capable of organic growth.15

Professor Rosenne has demonstrated that scholars and judges advancing a ‘constitutionalist’ theory conceptually distinguish constituent instruments of intergovernmental organizations from the bulk of multilateral treaties, in particular with regard to their interpretation, the acquisition and loss of membership, reservations, and amendments.16 ‘[T]he element of treaty appears merely as the presupposition 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 interpretation oriented to the aims and purposes of the UN and their pursuance in a changing global context.19 As Professor Skubiszewski noted, ‘the perception of the

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Thomas M. Franck, Book Review, 77 Harv. L. Rev. 1565 (1964) (reviewing D.W. Bowett, The Law of International Institutions (1963) ) (emphasis added). See Shabtai Rosenne, Developments in the Law of Treaties 1945–1986, at 181–258 (1989). Ibid. at 191. Considering Sir Humphrey Waldock’s report on the law of treaties, the ILC adopted the following 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 chosen 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 instruments 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 organization – 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 treatymaking capacity of international organizations from the draft articles. 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

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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

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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 organization’, 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). 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 RamaMontaldo, 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 interpretation of the Charter’. For a brief review of ICJ case law in favor of ‘a teleological interpretation 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. See, e.g., Ian Brownlie, Principles of Public International Law 657 (6th ed. 2003): ‘The constitutional structure of an international organization …’. 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). 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

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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 parliamentarian 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 particularly 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 emphasized 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 terminology of H.L.A. Hart, the most fundamental rules of recognition, change and adjudication 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, therefore 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

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characteristics in common with the United States Constitution’). See also Ignaz SeidlHohenveldern, Völkerrecht 97 (8th ed. 1994): Since a founding treaty of an international organization ‘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’. 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). 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). See Hans Kelsen, General Theory of Law and State 110–11 (Anders Wedberg transl., 1945, 1999 reprint).

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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 sovereign 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 international 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 constitutionalism 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

28

See Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer Reinen Rechtslehre 320 (2nd ed. 1928) (my translation). 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 proposals, 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 standards 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 ‘constitutional right of veto’, i.e., a proposal for a reform of the veto power in accordance 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 nonmember 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 discourse on the constitutional foundations of the United Nations and the international community at large. The plan of the present book is as follows: The first chapter opens with an examination 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 particularly 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 problem 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 discussed. 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 community and international organization, the third chapter mainly deals with possible 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 nonmember 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 consistent 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 community, 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 international community. In the last section of the chapter, constitutional law is distinguished 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 admission 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 community 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 independent 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 particular, 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 organization 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 constitution’.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 ‘constitution’? 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 continental 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

31

32

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.’ Richard S. Kay, American Constitutionalism, in Constitutionalism: Philosophical Foundations 16 (Larry Alexander ed., 1998). 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 ‘documentary’) 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 relative absence of a pertinent Anglo-American debate. The question of how a constitution 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 scholars 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

34

35

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). 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, generally, ‘constitution’, in 3 The Oxford English Dictionary (2d ed.) 789–90 (1989). 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 constitution is further classified in a constitution in a formal and a constitution in a material 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 constitution 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 safeguard the norms determining the organs and the procedure of legislation that a special 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

37

38

39

See Gerhard Robbers, Die Staatslehre der Weimarer Republik: Eine Einführung, Jura 69, 72 (1993). 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). 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). 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 process 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 establishment of political unity, the process of an ever new creation and formation of this unity by compromise and concession. Rules about the organs, formal functions 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 fundamental 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 procedures to resolve conflicts in the community, and organizes and structures the formation 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 41

42 43

44 45

46

47

Kelsen, General Theory (supra note 26), at 125. 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. See Dieter Grimm, Integration by Constitution, 3 Int’l J. Const’l L. 193 (2005). See Smend, Verfassung und Verfassungsrecht, at 78 and 189, respectively: ‘[D]ie Verfassung ist die gesetzliche Normierung einzelner Seiten dieses Prozesses [des Integrationsprozesses].’ Ibid. at 80–81. 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). 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’). 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, established 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 constitution, 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 community’s political existence is defined by means of a systematization and rationalization 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 constitution in a substantive sense (materielle Verfassung) and a constitution in a formal 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 instrument 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

49 50 51 52

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). Carl Schmitt, Verfassungslehre 23 (1928). See Hermann Heller, Staatslehre 248–79 (1934, many later reprints). Ibid. at 270–71. Ibid. at 273–74.

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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 unified order. … The temporary outcome of that process of rationalization is the modern state. … In order to subordinate, directly or indirectly, all inhabitants of a territory to the central authority, and to make everybody contribute to the effectiveness 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 modern state. In order to avoid misconceptions about the character of the international 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 constitution. 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 determination 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 54 55 56

Ibid. at 275 (my translation). Ibid. at 264–65, 276–77. Ibid. at 253, 271 (my translation). 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 community 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 constitution 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 constitution 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 established 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

58

59

60

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). 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. 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). The Federalist No. 53, at 331–32 (James Madison) (Clinton Rossiter ed., 1961).

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Chapter One

which contains certain specified exceptions to the legislative authority’, and which provides for a control of this authority by independent courts. ‘No legislative 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 circumstance peculiar to the plan of convention, but from the general theory of a limited Constitution’.62 Following those ideas, the U.S. Supreme Court asserted an authority of judicial 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 written 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 discovered the true meaning of spoken and written normative sources generated by competing power centers’. Case-law, following its own inner dynamics, reduced the significance of the constitutional text, and the view that the Constitution is a charter 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 62 63 64

The Federalist No. 78, at 466–67 (Alexander Hamilton). The Federalist No. 81, at 482 (Alexander Hamilton). 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803). See Mirjan R. Damaška, Reflections on American Constitutionalism, 38 Am. J. Comp. L. 421, 426–28, 442 (1990).

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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 practical application, American legal realism described ‘any working constitution … as being in essence not a document, but a living institution built (historically, genetically) 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 66 67

68

69

Kay, American Constitutionalism (supra note 31), at 48. See Karl Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 3 (1934). 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). 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). See Harper v. Virginia Board of Elections, 383 U.S. 663, at 677–78 (1966) (Black, J., dissenting) (emphasis added).

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up a constitution, one thus must primarily look at the discussion about constitutional 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 distinction, 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 constitution almost universally presents itself as a complex of fundamental norms governing the organization and performance of governmental functions in a 70

71

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). 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 (revised 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 directives73 (regarding, e.g., social welfare, culture, international peace, or the protection 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 authority. 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

73

74

75

76

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 relationship and sphere of activity, as well as the fundamental position of the individual in his or her relation to the government.) The German term is Staatszielbestimmungen. See, e.g., Grundgesetz [Constitution] art. 20a (protection of the environment) (added 1994). Their distinctive quality is that they do not bring forth individual rights which could be juridically enforced. 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). 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 establishment 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). 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

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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 constitutional court) are empowered to review the constitutionality of such acts (‘judicial 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 conquered 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 nineteenth 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

77

78

79

80

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.). See Scheuner, Verfassung (supra note 75), at 175, 177. For a comparative analysis of contemporary European constitutions, see Grewe & Ruiz Fabri, Droits constitutionnels européens (supra note 34), at 37–40. 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 different 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.’ 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). 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

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idea intends a system of principles established to secure the subjects in the possession 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 déterminée, n’a point de constitution.’ 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.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 interaction with strong social forces (like political parties, pressure groups, bureaucratic or military institutions) which it cannot completely control. In that sense, its

81

82

83

84

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. 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 democratic 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.’ 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). For this and the following, see Scheuner, Verfassung (supra note 75), at 173–74.

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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 86

Ibid. at 173. 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 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. 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

88

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’). See supra, Introduction.

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(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 constitution 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 Völkerrechtsgemeinschaft (The Constitution of the International Legal Community).90 In this study, which was based on Kelsen’s monism, he used the notion as describing ‘those norms which deal with the structure and subdivision of, and the distribution 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

90

91

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’). 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). See Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft v (1926): ‘jene Normen, die den Aufbau, die Gliederung und die Zuständigkeitsordnung einer Gemeinschaft zum Gegenstand haben’.

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[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 comprehensive 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 constitution 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 subsequently 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 framework 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

93

94 95

‘… Die völkerrechtliche Grundordnung ist daher die Verfassung der Völkerrechtsgemeinschaft’ (ibid.). 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 international 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). Alfred Verdross, Völkerrecht 74 (2d ed. 1950). Ibid.

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international law was created, and which then were further developed by customary international law and certain multilateral treaties’.96 The use of the phrase ‘is founded on’ indicates that those original norms – elsewhere described as ‘a structure 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 constitution 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 international 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 customary 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 absolutely 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

97 98 99 100 101

See Alfred Verdross, Völkerrecht 136 (5th ed. in collaboration with Stephan Verosta & Karl Zemanek, 1964) (emphasis added). Ibid. at 25. Ibid. at 136 (emphasis added). Alfred Verdross, Die Quellen des universellen Völkerrechts: Eine Einführung 13–37 (1973). Ibid. at 20–21. Ibid. at 31.

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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 treaties 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 certain absolute goals. In the latter case, too, a treaty conflicting with these goals is absolutely prohibited’.104 Accordingly, jus cogens describes those rules which guarantee 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 further 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 (völkerrechtliche 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 Völkerrechtsgemeinschaft)’.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

102 103 104 105 106 107 108

Ibid. at 24, 25, 31. Ibid. at 21. Ibid. at 29. Ibid. at 32. Ibid. at 21. Ibid. at 35 (emphasis added). See Alfred Verdross & Bruno Simma, Universelles Völkerrecht: Theorie und Praxis 5 (1976).

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‘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 recognized 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 ‘nonorganized’ 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 international 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 community. However, in the beginning the UN Charter was just the constitution of a partial structure (Teilordnung) within the universal system of international law 109

110

Alfred Verdross & Bruno Simma, Universelles Völkerrecht: Theorie und Praxis vii–viii (3d ed. 1984) (emphasis added). Verdross & Simma (3d ed.), at 59–60, 62.

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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 recognized its fundamental principles, the UN Charter has gained the rank of the fundamental 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 presupposed in that process’.112 At the same time constitution was defined as an outcome 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 development of modern international law, this constitution has become ever more comprehensive, 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 acceptance 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 community of states as developed by Professors Verdross and Simma oscillates between general principles of law common to states, enabling them to enter into legal relations 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

112 113

114

Verdross & Simma (3d ed.), at 72. See also ibid. at 221: the UN Charter as ‘the present constitution of the universal legal community (gegenwärtige Verfassung der universellen Völkerrechtsgemeinschaft)’. Emphasis added.—The theory that general international law has been incorporated 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’. Verdross & Simma (3d ed.), at 60. 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 community. … 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 practical terms, as organs of the international community of States as a whole’. (Emphasis added.) 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

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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 distinction between ‘general international law’ and the law of the Charter. Instead,

115

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117 118

of the Christian world. In his view, the UN Charter secularized, universalized and supplemented these principles, while also adding new ones. 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 international community’ (1298), and ‘[the] Charter … may become a real and effective constitution 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 constitution of the community of states …’. 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’. See Sir Humphrey Waldock, General Course (supra note 3), at 36, 38 (emphasis added). See Simma, Contribution (supra note 90), at 43.

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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 textbook 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 ‘traditional’ 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 established 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 119 120

121

122 123

See Verdross & Simma, part 3 of the 2d and 3d ed., respectively. 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. 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 “constitutionalist” 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. See Verdross, Quellen (supra note 99), at 35–36. See supra text accompanying note 107.

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‘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 incorporated ‘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 traditional 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 constitution 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 different 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 decisionmakers in a community, specify and clarify basic community policies, establish appropriate structures of authority, allocate bases of power for decision and sanctioning purposes, authorize procedures for making the different kinds of decisions, 124 125 126

Verdross & Simma (3d ed.) (supra note 109), at 168. See Nicholas Onuf, The Constitution of International Society, 5 Eur. J. Int’l L. 1, 5 (1994). 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).

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and secure the continuous performance of all the different kinds of decision functions (intelligence, promotion, prescription, etc.) necessary to making and administering general community policy.127 The constitutive process is authoritative power exercised to provide an institutional 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 matters 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 originate 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 backbone 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

128

129

130

131

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-hierarchical constitutive structures, (2) ineffective constitutive structures, (3) effective but limited constitutive structures, and (4) effective constitutive structures). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, in International Law Essays, at 191, 192. Lung-chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective 51 (1989). Myres S. McDougal, International Law, Power, and Policy: A Contemporary Conception, 82 Recueil des Cours 133, 234 (1953 I). 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).

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Charter (‘constitutive document’)132 and had used the expression ‘world constitutional 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 constitutive 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

133

134

135

136 137

138

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 prescription 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 …’). 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 community (or larger groupings) of states and particular states’ (originally published in 1959). 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’). 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]’. McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 194. Reisman, Constitutional Crisis (supra note 134), at 100. It is interesting to compare this concept with Smend’s view of a constitution as a normative part of a wider process of integration. See supra text accompanying note 41. McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 198.

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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 nonspecialized, 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 constitution 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 understood 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 questions …: [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 decision: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 139 140 141 142 143 144

145

146 147 148 149

Ibid. at 198–99. See Reisman, Law from the Policy Perspective (supra note 127). McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 195. Ibid. at 226. Ibid. at 222. Ibid. at 206, 208–11. For a classification of arenas according to their institutional structures, geographical range and duration, see ibid. at 243–47. 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 machinery 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’. See McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 226. McDougal, International Law, Power, and Policy (supra note 130), at 184–85. See supra text accompanying note 129. Reisman, Law from the Policy Perspective (supra note 127), at 10. See also McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 226.

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of efforts to establish a constitutive process approximating [one that] has hierarchical 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 ‘constitutive 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 authoritative activities enormously, terminating some processes, creating others and constantly 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, paragraph 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 observers 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 textualism, 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 matter of fact. But with respect to its contents, general validity and duration it only 150 151 152 153 154

Reisman, Unilateral Action (supra note 127), at 12. See supra text accompanying notes 136–144. Reisman, Law from the Policy Perspective (supra note 127), at 10. See McDougal, Lasswell & Reisman, World Constitutive Process (supra note 128), at 226. 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’.

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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 transition from traditional doctrine to a more progressive theory.157 In his lectures

155

156

157

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 historical 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). See Louis B. Sohn, Expulsion or Forced Withdrawal from an International Organization, 77 Harv. L. Rev. 1381, 1423 (1964). 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 advanced the idea of community interest in international law in a particularly strong and influential way (see, especially, his 1994 Hague lectures, supra note 113) and must therefore be addressed 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).

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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 coexistence 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 international 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

159 160

161 162 163

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). Mosler, International Society, at xv. 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. See Mosler, International Society (supra note 158), at 16. Ibid. at 84–85. 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 constitutional law of the UN Charter together with the other principles of general international law. See supra text accompanying note 111.

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

164 165

166 167

Mosler, International Society (supra note 158), at 17 (footnote omitted). Ibid. See also id. at 18: ‘The public order of the international community … consists of principles and rules the enforcement 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’. 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. [1953] Y.B. Int’l L. Comm’n 155. Mosler, International Society (supra note 158), at 19. See also International Legal Community (supra note 158), at 1253–54.

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because the rules belonging to it ‘apply not only to the members of the international 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 international community, and of its constitution. What is now the position of the United Nations and its Charter in this constitutional 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 international law.172

To Mosler, the Charter not only does not have a higher rank than general international 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

168 169

170

171 172

Mosler, International Society (supra note 158), at 19. Ibid. See also International Legal Community (supra note 158), at 1254: ‘The term [international public order] is designed to comprise the fundamental principles and rules the enforcement 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’. See also Mosler, International Society (supra note 158), at 135 (contrasting ‘constitutional principles and rules’ with ‘fundamental principles belonging to the public order of international society’). Ibid. at 85. Ibid. at 192–93. See also ibid. at 176.

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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 international 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 constitution 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 implemented 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 lawmaking, administration and adjudication. The question arises whether the international 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

173 174 175 176

177

Ibid. at 192. Ibid. at 193. Mosler, International Legal Community (supra note 158), at 1252. Christian Tomuschat, Obligations Arising for States Without or Against Their Will, 241 Recueil des Cours 195, 216 (1993 IV) (hereinafter Obligations for States). 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

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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 formal 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 forming part and parcel of the substantive constitution’.179 While, similar to the authors considered so far, the passage quoted above described formal rules concerning law-making, implementation and adjudication as the key elements of a constitution, the author subsequently put more emphasis on substantive provisions, thus joining together what Judge Mosler called ‘constitution’ and ‘public order’, respectively: The international community and its constitution were created by States. Over centuries up to the present time, buttressed in particular by the UN Charter, the idea of

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ensemble of rules, procedures and mechanisms designed to protect collective interests of humankind, 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). 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 constitutional 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 international 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 entrusted with adjudication and law-enforcement. See Konrad Ginther, Befreiung und Entwicklung im südlichen Afrika: Zu einigen Entwicklungstendenzen in der Verfassung der Völkerrechtsgemeinschaft, in Festschrift für Ignaz Seidl-Hohenveldern 129, 130 (Karl-Heinz Böckstiegel et al. eds., 1988). 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 constitution was also seen by Verdross, Quellen (supra note 99), at 18 and 21.

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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 entitlement 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 international 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

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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). Tomuschat, Obligations for States, at 211 (emphasis added). This substantive notion of constitution 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 déterminée, 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 essentielles 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). 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 attempted 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). 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’.

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international legal order’;184 it ‘is the core element of the constitutional framework 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

184 185 186 187

188 189 190

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Tomuschat, Obligations for States (supra note 176), at 237. Ibid. at 292–93. Ibid. at 293–300. 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). See Tomuschat, Obligations for States (supra note 176), at 240. Ibid. at 306. 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). 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 réflexions sur la communauté internationale, in Mélanges Michel Virally 349, 354 (1991). See Tomuschat, Obligations for States (supra note 176), at 309.

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Professor Tomuschat understands these constitutional rules as part of customary 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 emphasized 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 relevant basis of obligation, constitutional prescriptions are said to relate to community 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 constitutive 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 construction 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 contractual rules concerning the performance of governmental functions in the international community, and concretizing the basic rules. In his Hague lectures of 1994, Professor Jochen A. Frowein spoke of ‘the constitution of the world community which we find enshrined in the United Nations Charter’,197 and underlined that the Security Council ‘decides with binding force

193 194 195

196 197

Ibid. at 286. See, e.g., ibid. at 293. Consequently, the UN is not recognized as ‘a comprehensive organizational structure’ of the international community. See ibid. at 239. Cf. Tomuschat, International Law (supra note 177), at 161 et seq. 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.

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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 bilateral 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 interdependent and interactive.200 According to the author, ‘[a]n inquiry into the constitution 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 ‘arguable … 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,

198 199 200

201 202

Ibid. at 356. Ibid. at 361–62. 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). Onuf, Constitution, at 19. Hart, Concept of Law (supra note 25), at 209.

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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, paragraph 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 addition, 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 subject to change through the several processes they specify for legal change in general’, 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 character 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 international community, and to the inherent relationship between international constitutional 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.

203 204 205 206 207

Onuf, Constitution (supra note 200), at 16. Ibid. at 16–17. Ibid. at 17. Ibid. at 14, 17. 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

208 209 210

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

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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 clarification 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 international community school the symbolic value of the constitutional terminology prevails, ‘constitution’ implying that high degree of interdependence and integration 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, nothing 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

212 213

214

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). See, e.g., Tomuschat, International Law (supra note 177), at 88. 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 characterization of a rule of international law as pertaining ratione materiae to the constitution of humankind.’ (Emphasis added.) 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).

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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 satisfied 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 constitution 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 single state can inflict upon the entire world population, ‘[t]he international community 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 doctrine 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 constitution 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

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216 217

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 constitution in lieu of previous, and largely discredited, nationalistic sentiments. Tomuschat, Obligations for States (supra note 176), at 306. See supra text accompanying note 181.

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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 citizen and defines his or her legal status, a state is said to be subject to the international 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 community. 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 selfdetermination 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 established constitutional scheme.

218

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

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Although 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 establishing and preserving peace and legal order – is still of central importance. 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 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 international community as a whole’ over those of individual states. The second objection relates to the fact that the present concept of constitution 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 independent 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

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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. See Peter Häberle, Die Entwicklungsstufe des heutigen Verfassungsstaates, in id., Rechtsvergleichung im Kraftfeld des Verfassungsstaates 105, 107 (1992).

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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 constitutionalism 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 culture. 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

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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). Address by President Mandela to the Constitutional Assembly on the occasion of the adoption of the new constitution, 8 May 1996. Statement by Deputy President Mbeki on behalf of the African National Congress on the occasion of the adoption by the Constitutional Assembly of ‘The Republic of South Africa Constitution Bill 1996’, 8 May 1996.

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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 undertaking 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 constitution, there is a state (and no more international law).227 Since the nineteenth century 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 constitution and statutes on the one hand, and international agreements on the other.228 The historical and ideological association of (sovereign) modern state and constitution presents a serious challenge to international constitutionalism, in particular in legal cultures in which even the word has come to be used only with reference to state constitutions.229 227

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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.’ 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 constitutional lawyers were preoccupied for a good part of the second half of the nineteenth century. 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 sovereign 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.’ 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

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However, there is no compelling reason for reserving the term ‘constitution’ for the supreme law of a (sovereign) state.230 This etatist constitutionalism, according 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 integration. 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 definition of the word ‘constitution’ in The Oxford English Dictionary: ‘The system or body of fundamental principles according to which a nation, state, or body politic 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 societies’.237 Of the authors of the Weimar period whose works we have considered

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233 234 235 236

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is translated as ‘charter, constitution, memorandum and articles, articles of association’. See Alfred Romain, 2 Dictionary of Legal and Commercial Terms 617 (1980). 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’). 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’). See Aubert, La constitution (supra note 46), at 28 (adding, however, that ‘le corps politique moderne par excellence’ is the state). See David M. Walker, The Oxford Companion to Law 277 (1980). 3 The Oxford English Dictionary (2d ed.) 790 (1989). See his Verfassung als öffentlicher Prozess (supra note 45), in particular chs. 4–7. Häberle, Verfassungsinterpretation als öffentlicher Prozess – ein Pluralismuskonzept, in Verfassung als öffentlicher Prozess (supra note 45), at 121, 122. 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.)

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above, it is Rudolf Smend whose idea of a constitution as the legal order of a process 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 validity depended on its according with the rules established by the sovereign authority in ‘the constitution’. However, already the example of a federal state like the United States of America, Germany or the Swiss Confederation, where the individual 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 selfgovernment 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 supranational organization or the international community.

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See Ingolf Pernice, Carl Schmitt, Rudolf Smend und die europäische Integration, 120 Archiv des öffentlichen Rechts 100, 117–18 (1995). 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. 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. Tomuschat, Obligations for States (supra note 176), at 212.

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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 characterized as a ‘constitution’, and which consequences would result from such a qualification.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 relationship between them. At this moment, it is only suggested that, when determining their respective status in relation to ‘classical’ state constitutions, one must distinguish between constitutions of ‘domestic’ communities (like cities, regions and member states of federations) on the one hand, and that of supranational and 242 243

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For references, see Fassbender, UN Security Council Reform (supra note 29), at 71 n. 200. 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’). See Kelsen, General Theory (supra note 26), at 326.

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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 section 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 independent’, 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 consent’ 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

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See Jörg Fisch, Vertrag, Gesellschaftsvertrag, Herrschaftsvertrag, in 6 Geschichtliche Grundbegriffe 901, 918–32 (Otto Brunner et al. eds, 1990). See John Locke, Two Treatises of Government (1690) 164 (W.S. Carpenter ed., 1989). See Ingolf Pernice, Billigkeit und Härteklauseln im öffentlichen Recht 337–50 (1991). See Wood, Creation (supra note 57), at 268–69 (‘The Contract of Rulers and Ruled’). Other expressions are vereinbarte Verfassung (constitution by consent) and paktierte Verfassung (constitution by compact). 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. 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).

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There is another combination of treaty and constitution when several independent 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 generally 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 organization’.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

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See Böckenförde, Geschichtliche Entwicklung (supra note 76), at 39–41. Cf. also Carl Schmitt, Verfassungslehre 63–75 (1928). See art. VII, cl. 2: ‘Done in Convention by the Unanimous Consent of the States present …’ For texts, see Altmann, Ausgewählte Urkunden (supra note 13), at 9 and 73, respectively. 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). 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 formally 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. 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).

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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 association261 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 political 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

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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 adoption 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.’ For the non-consensual character of the international constitution as understood by Professor Tomuschat, see supra text accompanying note 181. See supra text accompanying note 12. 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’). See, e.g., U.S. Const. pmbl. (‘We the People of the United States …’). See infra, ch. 4: Constitutional Characteristics of the UN Charter. See C. Schmitt, Verfassungslehre 61–62 (1928).

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constitutional process. To Rudolf Smend, a ‘state’ as an empirical reality is continuously effected by a process of integration partly regulated by constitutional 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 themselves as legal entities by making a constitution.268 If one subscribes to the first view, one must prove the existence of an international 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 international 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 ‘interdependence that exists between the two concepts of international community and its constitution’.270 He later added that ‘[w]hoever assumes the existence of a community 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 constituted, its life will still be influenced by the measure of communal cohesion present 265 266 267 268

269 270

271

See Smend, Verfassung und Verfassungsrecht (supra note 41), at 78–85. Cf. supra, ch. 1. See Heller, Staatslehre 194, 230 (1934). See Hesse, Grundzüge (supra note 46), at 5, 10. Consider, in particular, the process in which the British colonies in North America gained their independence. See supra text accompanying note 252. 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. Tomuschat, International Law (supra note 177), at 73.

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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 corresponding 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, indirectly, of mankind’.275 The authors in question refer to the notions of ‘the international 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

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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). See Heller, Staatslehre (1934), at 165–66 (solidarity among a ‘people’ as one of the most important 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 circumstances), and 277–79 (need for an effective pouvoir constituant). See infra text accompanying note 301. 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 values, 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.’ 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

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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

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‘crimes under general international law, that is to say, under a norm of international law accepted 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 international 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 community that its breach is recognized as a crime by that community as a whole constitutes an international 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). 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 concern 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 genocide’ 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 recognized ‘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 construction 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.

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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

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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 constituting the “civil society” of international law’. 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). 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’. 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).

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Bedjaoui referred to the ‘[i]nternational society, understood not only, from a formal point of view, as a set of subjects of law recognized at a given time by international 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 condition 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 community 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

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See Mohammed Bedjaoui, General Introduction, in International Law: Achievements and Prospects 1, 5 (M. Bedjaoui gen. ed., 1991) (emphasis added). 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). Tomuschat, Internationale Gemeinschaft (supra note 180), at 6. Emphasis added.

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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 international 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 organization, 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 different 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 institutionnel.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 constituent parts—it does not express a mere volonté de tous but a volonté générale.292 286

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‘[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). See Tomuschat, Internationale Gemeinschaft (supra note 180), at 8. Accordingly, René-Jean Dupuy described the international community as ‘la communauté normative par le jus cogens’. See Dupuy, La Communauté internationale (supra note 281), at 151. Carl Schmitt, Verfassungslehre (1928), at 73, 363. See also Angelo Piero Sereni, Le crisi internazionali, 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.’ 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. ‘[L]e réseau de coopération internationale a dépassé le stade du “lien contractuel”.’ See Lachs, Quelques réflexions (supra note 191), at 355. See Michael Koch, Comment, in Allocation of Law Enforcement Authority in the International System 178 ( Jost Delbrück ed., 1995).

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In contrast to the old society of states, the new international community293 includes all subjects of international law, and ultimately all human beings. Particular interests 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 constitutionel, or constitutional bond,294 between the members of the international community, 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 constitution, 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

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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 (particularly 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). See supra note 291. See Lachs, Quelques réflexions (supra note 191), at 355. ‘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. See Carl Schmitt, Verfassungslehre 61–62 (1928).

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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 pluralism (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 precondition of a ‘political existence’. A people’s statehood and constitutionmaking 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 establishes a concrete and real correspondence between the member states and prevents 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 constitution 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

299 300 301 302

Carl Schmitt, Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien 26 (1963). Ibid. at 54. Ibid. at 363. Carl Schmitt, Verfassungslehre 375–76 (1928). Ibid. at 380, 384.

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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 homogeneous 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 distribution 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 minimum 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

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See Heller, Staatslehre 163–66, 230 (1934). See also ibid. at 194–95, 230, 243. Tomuschat, Obligations for States (supra note 176), at 237–38. See also Henkin, Mythology of Sovereignty (supra note 115), at 358. 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. One may see this common acceptance of certain rules as an expression of a (minimum) ‘cosmopolitan 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 cosmopolitan culture, embracing both common ideas and common values, and rooted in societies in general as well as in their elites.’

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However, I do not want to belittle the failure of the community to react appropriately 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 unforgotten, 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, discussing, 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 academic 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 307 308

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Joseph H.H. Weiler, Editorial, 4 Eur. J. Int’l L. 157 (1993). See Mats Berdal, Bosnia, in The UN Security Council: From the Cold War to the 21st Century 451 (David M. Malone ed., 2004). Ibid. at 463 et seq. 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 … .’ Accordingly, international law deems a functioning government one of the essential prerequisites of statehood. Also, there are – with the possible exception of peoples as subjects of the right

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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 community’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 gouvernants internationaux),312 was an ingenious concept at that time but is an insufficient 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

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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. For G. Scelle’s idea of ‘dédoublement fonctionnel des compétences gouvernementales’, according 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. See Lachs, Quelques réflexions (supra note 191), at 354. 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).

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view, it would be little satisfying to regard an undefined number of intergovernmental 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 reliability 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 ‘maintain 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 relationship 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 institution 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 community, of which it is the legitimate representative’.317 If, therefore, under the present circumstances, the UN furnishes the international 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

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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. 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.’ 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 ‘personified international community’. For the distinction between a ‘constitution in a substantive sense’ and a constitutional instrument, 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’ constitutional 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 constitution of the universal community of states’ and presented the rules of ‘general international law’ within its framework.320 However, two different lines of reasoning 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 ‘constitution 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

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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). See supra text accompanying notes 109 and 111. See Verdross & Simma (3d ed.) (supra note 109), at 59–60 and 62, and supra text accompanying note 112.

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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 international 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 statutes of an organization. But this characterization of the Charter does not adequately 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 characterization, 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 assertion 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 question 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 constitutional 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

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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 tertiis 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 fonctionnel 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 international 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 international law besides the Charter.327 As Judge Hersch Lauterpacht declared in his separate opinion in the South-West Africa—Voting Procedure case,

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See Verdross & Simma (3d ed.), at 177 and 484. Id. at 177. See supra note 312. 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 nonmember state to a classic alliance of states). See supra note 111 and accompanying text. See infra ch. 5, Constitutional Law and ‘General International Law’.

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[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 selfdefense, 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 collective self-defense as approved by that provision. However, when taking measures 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 procedures 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 unilateral response by way of individual or collective self-defense so long as the security 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 permanent 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 restoration of international peace and security331—be it straightforward measures

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1955 ICJ Rep. 65, at 109. In the following, the Judge exemplified this principle: ‘Thus, for instance, if two or more States were to confer by treaty upon the General Assembly certain functions 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. This consequence is overlooked by Stanimir A. Alexandrov, Self-Defense Against the Use of Force in International Law, at 287 (1996). 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). 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,

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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

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namely Security Council enforcement actions pursuant to Chapter VII, and the right to individual and collective self-defence laid down in Art. 51’. 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). 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 preamble 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). 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’. 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.

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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 general 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 international law, the authors have shied away from taking the decisive step and qualifying 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 normative 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

336 337

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See supra text accompanying note 174. See SC Res. 418 (4 Nov. 1977): ‘The Security Council … Decides that all States shall cease forthwith 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 nonmember States, too, to heed the measures determined by it’. See supra ch. 1.

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features:339 A constitution is a set of fundamental norms about the organization and performance of governmental functions in a community, and the relationship 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 established 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 phenomenon 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 process 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

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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’. 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 autochthony. 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). In contrast to Weber, Georg Jellinek, an eminent German constitutional lawyer of the nineteenth century, who seems to have inspired Weber with his method, connected a value judgement 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 inductive basis. See Georg Jellinek, Allgemeine Staatslehre 34–42 (3d ed. 1913). 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.

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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 exercised, 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 practice 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 antitrust law has demonstrated,347 this model function of domestic law is not limited 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 settings 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

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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). Lauterpacht, id. at viii. Arnold D. McNair, Foreword, in Lauterpacht, Private Law Sources (supra note 343), at v. 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.). 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 commercial law, international economic development law, international corporation law, and international tax law.

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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 subordination. 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 conditions and institutions of municipal law ‘for the purpose of appreciating a concept 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

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350 351 352 353 354

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 Zimmermann et al. eds., 2006). 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. See supra ch. 3, International Community and International Constitution. See supra text accompanying note 343. See Shahabuddeen, Municipal Law Reasoning (supra note 343), at 92. See Philip Allott, Eunomia (1990), at 167. Cf. Thomas M. Franck, Fairness in International Law and Institutions 85 (1995).

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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

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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’. See Falk, The Pathways of Global Constitutionalism, supra note 145, at 21: a ‘postwar constitutional 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). 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.) See Ikenberry, After Victory (supra note 356), at 210. For the author’s understanding of a constitutional 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).

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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 powerexercises.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

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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). See Aegean See Continental Shelf Case (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3, 33 (Tarazi, J., sep. op.). Professor Abi-Saab described as les principes constitutifs of the international community the following 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 equality 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 principes 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 contemporain essentiellement ceux figurant à l’article 2 de la Charte des Nations Unies’. Ibid. at 328. 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 respectively in before San Francisco … ’. See William Shakespeare, The Tempest, act 2, sc. 1. See infra ch. 5, Constitutional Law and ‘General International Law’.

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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 abiding 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 immunities.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

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368 369 370

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). Grimm, Integration by Constitution (supra note 42), at 202 (emphasis added). See L. Oppenheim, International Law: A Treatise. Vol. I.–Peace (6th ed. 1947, H. Lauterpacht ed.), at 585. See also Maduro, The Importance of Being Called a Constitution (supra note 256). See David M. Walker, The Oxford Companion to Law (1980), at 208. Ibid. at 796.

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‘Charters’ granted by the King.371 The first enactment of the first popular assembly 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 valuable 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 fundamentals 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.

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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). The Declaration of Independence (1776), para. 15. 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). 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’.

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Constituent Power and Constitutional Form 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, 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 polity 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 “constituent 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

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See Martin Loughlin & Neil Walker, Introduction, in The Paradox of Constitutionalism (supra note 48), at 2. Ibid. at 3. Ibid. 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’. 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’.

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convened ‘to prepare a charter for a general international organization for the maintenance of international peace and security’380 understood itself as a constitutional convention of the world, composed of representatives of the fifty participating 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 phrasing 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 following 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

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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. 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. 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.

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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 governments. 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 international 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 manifestation 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

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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. See Max Farrand, The Framing of the Constitution of the United States 14 et seq. (1913). 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’ …’. But see Rüdiger Wolfrum, ‘Preamble’, in I The Charter of the United Nations (2nd ed.) (supra note 115), at 33, 34. 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.

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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 indication 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 community 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 international 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

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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 deposited 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 decision 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. 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. See Summary Report (supra note 383), at 277 and 289. See Verbatim Minutes (supra note 378), at 13, 36 et seq., and 529 et seq., respectively.

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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 international 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 constituent power lies with the ‘Peoples of the United Nations’, who today are virtually 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, utilization of outer space and the sea-bed (‘common heritage of mankind’), global environmental 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 proposals 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 interaction 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

393 394

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. See Art. 110(1) of the UN Charter. 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’.

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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 classical 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 measures 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

396 397

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399 400

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. Tomuschat, International Law, at 306. 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. 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’). Tomuschat, Obligations for States (supra note 176), at 334. See Tomuschat, International Law (supra note 177), at 343.

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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 countryspecific 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 fundamental interests of the international community’.402 By way of example, I mentioned 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 resolutions 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 401 402

403 404

405 406

See Fassbender, UN Security Council Reform (supra note 29), at 211. Tomuschat, Obligations for States (supra note 176), at 344. See also id., L’adaptation institutionnelle des Nations Unies au nouvel ordre mondial, in Les nouveaux aspects du droit international (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. See Fassbender, UN Security Council Reform (supra note 29), at 211 et seq. 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. Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Int’l L. 175, 176 (2005). 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 particular in effect, the legitimacy of and respect for that resolution will be enhanced by a process that ensures transparency, participation, and accountability’.

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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 negotiation 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 noncompulsory 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 member states to be made available to the Security Council.

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410 411 412 413

For text of the Convention, see Res. 54/109 of the UN General Assembly, annex (Dec. 9, 1999), 39 ILM 270 (2000). 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 additional 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). For an analysis of the negotiation and implementation of Res. 1540, see Johnstone (supra note 404), at 290. See Szasz (supra note 408), at 905. Ibid. at 902 (with references). Ibid. at 905. 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.’

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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 targeted sanctions do not have a ‘direct effect’ on individuals. Like traditional sanctions, 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 resolution of international conflicts. His performance of the good offices function was called ‘the most crucial indicator of the Secretary-General’s evolving constitutional 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 …

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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). See Thomas M. Franck & Georg Nolte, The Good Offices Function of the UN SecretaryGeneral, in United Nations, Divided World: The UN’s Roles in International Relations 143, 144 (2d ed. 1993, Adam Roberts & Benedict Kingsbury eds.).

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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 unanimously 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 opposition 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 systems of government has established courts with such sweeping powers of judicial

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See, e.g., Arts. 83 and 92 of the German Basic Law (Constitution), and Art. 46 of the Swiss Federal Constitution of 1999. 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 institutions of the Union’. See Art. 36 of the ICJ Statute. See Art. 93 of the Charter. See Arts. 5(1) and 14 of the League of Nations Covenant. 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. 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.

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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 constitutionalism 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

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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). 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 ‘quasijudicial organs of the United Nations’; see Kelsen, The Law of the U.N. (supra note 359), at 476–77. See SC Res. 827 (25 May 1993) and 955 (8 Nov. 1994). In 2007, the Security Council established 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). 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. Philip Allott described the principle of the intrinsic limitation of power (‘all legal power is limited’) as one of the generic principles of a constitution. See Allott, Eunomia (1990), at 168, 173–74. 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 reciprocal operation of the veto during the Cold War … created a system that was its functional equivalent’. For discussion, see Fassbender, UN Security Council Reform (supra note 29), at 307 et seq. For a respective survey of European constitutional systems, see Grewe & Ruiz Fabri, Droits constitutionnels européens (supra note 34), at 366–83.

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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 concerned (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 principal 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

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Lockerbie (Weeramantry, J., dissenting), 1992 ICJ Rep. at 165. 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’). See infra ch. 6, Admission and Expulsion of UN Member States. See supra, Constituent Power and Constitutional Form. 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

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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 selfdetermination 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 individual 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 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. 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

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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’. Emphasis added. Emphasis added. Emphasis added. See also Art. 55 of the Charter. Preamble, para. 2. See also Arts. 1(3), 13(1)(b), 55(c) and 76(c). 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). See infra ch. 5, Constitutional ‘By-Laws’ of the International Community. See Declaration on Principles of International Law concerning Friendly Relations and Cooperation 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.

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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 instrument,444 the Charter clearly gives expression to such a hierarchical model: ‘In the 442

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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 criteria 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. 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 inconsistent 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’. 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 limitation of the contractual capacity of the members of the United Nations’.

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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 provisional 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 including, for those of them that are members of the Council of Europe, their obligations 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

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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. 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). See Leland M. Goodrich & Edvard Hambro, Charter of the United Nations: Commentary and Documents 519 (2d ed. 1949) (emphasis added). Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, Rev. Int’l Comm’n Jurists, June 1992, at 38, 43–44.

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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 authorization 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 collective 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 international 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

450 451

452

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. XII UNCIO 680, quoted in Nicaragua, 1986 ICJ Rep. 14, 259, 358 (Schwebel, J., sep. op.). Declaration on Principles of International Law (supra note 441), Preamble, para. 4 (emphasis added). 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 (determining the rights and obligations of states parties to successive treaties ‘[s]ubject to Article 103 of the Charter of the United Nations’).

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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, paragraph 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 proceeded 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 preambles of which refer to, and reaffirm the rules of, the UN Charter. In the OAS 453

454 455 456

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 relationship 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’. See Art. 5(a) of the Treaty of Peace with Japan (136 UNTS 45 (1952) ). Art. 3(5) of the Treaty on European Union (EU Treaty) (supra note 240). See also Art. 21(2)(c) and Art. 42(1) and (7) of the EU Treaty.

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Charter, for example, the American States ‘[r]esolved to persevere in the noble undertaking that humanity has conferred upon the United Nations, whose principles and purposes they solemnly reaffirm’. The States Parties to the Vienna Convention on Diplomatic Relations of 1961 declared to have in mind ‘the purposes and principles of the Charter of the United Nations concerning the sovereign 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 generations 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

458

459

460

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. 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 générations futures’. See Thomas Jefferson, Letter to Samuel Kercheval, 12 July 1816, in Thomas Jefferson: Writings 1395, 1402 (Merrill D. Peterson ed., 1984). See Certain Expenses of the UN, 1962 ICJ Rep. 151, 182, 185 (Spender, J., sep. op.).

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Council. There is a striking difference between that rule and the one traditionally applied to the amendment of international treaties—the requirement of consensus among the parties. Referring to Article 26 of the Covenant of the League of Nations, which provided 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 constitution 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

462

463

464

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’. 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). Cf. Art. 40(4) of the 1969 Vienna Convention on the Law of Treaties (amendment of multilateral 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’. See Goodrich & Hambro, Charter of the United Nations (2d ed.) (supra note 447), at 538.

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United Nations Conference adopted Article 108 in full awareness of [possible] alternatives 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 universality 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 465 466

467 468 469 470

Ibid. at 538 et seq. 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 independent 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’. Franck, Is the U.N. Charter a Constitution? (supra note 340), at 97–98. See Karl et al., Comment on Art. 108 (supra note 389), at 1356–57. See Fischer Williams, supra text accompanying note 462. See supra ch. 3, International Community and International Constitution.

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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 significance, 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, codified 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

472 473

474 475

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 requirements 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 recommendation 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 statehood or has not yet been generally recognized by other states. See supra, The Charter and Non-UN Member States: Doctrinal Deficits. 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’. See supra, A ‘Constitutional Moment’. 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 participation 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).

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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 security’. In my view, another course of reasoning, which does not resort to the ‘revolution’ 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 international legal order. Rather, the notion describes the legal status which the international 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, sovereignty 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 freedom 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, paragraph 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

477

478 479

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’. Hans Kelsen, The Principle of Sovereign Equality of States as a Basis for International Organization, 53 Yale L. J. 207, 208 (1944). See Fassbender, Sovereignty and Constitutionalism (supra note 476), at 128. 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.)’

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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 members. 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 community 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 community’, 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 common values of the community.482 The actual enjoyment of sovereign equality by a state depends on a comprehensive 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 integrity 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 equality 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 international 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

481 482

483 484

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 represented 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) ). See Tomuschat, Obligations (supra note 176), at 292. 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). Tomuschat, Obligations (supra note 176), at 293. See also ibid. at 221–22, 334. Ibid. at 355.

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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 mirrored 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

486 487

488

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), reprinted 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. See Fassbender, Sovereignty and Constitutionalism (supra note 476), at 128 et seq. 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. See supra, The Charter and Non-UN Member States: Doctrinal Deficits.

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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 nonMembers 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 enforcement 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 constitution reveals a similarity sufficiently strong to attribute constitutional quality to the instrument. Other authors have used a similar methodology and arrived at conclusions 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 489 490

491

See Kelsen, The Law of the U.N. (supra note 359), at 107. 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 contradiction 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 community 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. 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 international 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 constitution of the international community, it is indeed binding on all members of that community.

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that unique treaty more proximately to a constitution than to an ordinary contractual 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 challenges, thereby assuring its enduring relevance to the needs of states and the emergence of an international community.492

In his recent book The Divided West Jürgen Habermas has also taken up my analytical 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 universality 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 themselves, together with their citizens, as the constituent parts of a politically constituted world society’.494

492

493

494

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 community, 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. 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). 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 implementation, the substantive rules depend on the rules of procedure, and the rules of procedure are meaningless without material norms. The inclusion of rules of procedure 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 community ‘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 nonsubstantive rules (like the provisions about the composition of UN organs, elections, 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

495 496

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

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of constitution became dominant only in the eighteenth century. Before, the term ‘constitution’ was mainly understood in an Aristotelian sense497 as meaning 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 originally 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’ constitution 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 community: Its rules must remain in line with the basic actual conditions of the international system. In other words, there must be a general harmony between the Charter and its ‘constitutional environment’.501 If this environment changes fundamentally, 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 program of a play cancelled long ago. To use a phrase coined by Karl Loewenstein, 497

498

499 500 501

See Aristotle, The Politics 186 et seq. (= Book III, chapters vi and vii) (T.A. Sinclair transl., revised by Trevor J. Saunders, 1981). 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 observed 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). See Scheuner, Verfassung (supra note 75), at 173. See Isensee, Staat und Verfassung (supra note 82), at 93 et seq. See Leo Gross, On the Degradation of the Constitutional Environment of the United Nations, 77 Am. J. Int’l L. 569 (1983).

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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 international customary law, generally accepted treaty-law and general principles of international 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 multilateral treaty operating within the framework of international law than as the constitution 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 independently beside the Charter.506 Instead, the Charter is the supporting frame of all international 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

502 503 504 505

506

507 508

See Loewenstein, Political Power (supra note 498), at 149. The German term is allgemeines Völkerrecht. See Waldock, General Course (supra note 3), at 19. 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). 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). See supra ch. 4, Constitutional Characteristics of the UN Charter: Hierarchy of Norms. 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

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The drafters of the Charter assumed the validity of certain legal rules, in particular 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 customary 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

509

510

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 international 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 …’. 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 replaced 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 constitution. 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 validity 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. See supra note 1.

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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 KelloggBriand 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 practice 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 parallel existence of customary constitutional rules and Charter rules. The United States Government was right when it argued in the Nicaragua case that ‘the provisions 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

512 513

514

In the ‘Friendly Relations Declaration’ (supra note 441), the General Assembly distinguished between ‘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). See Nicaragua, 1986 ICJ Rep. 14, 93, para. 173. 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 governed 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). Nicaragua, 1986 ICJ Rep. 95, para. 178 (emphasis added).

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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 institutional 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 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.521 515 516

517 518 519 520

521

See Arts. 38 and 43 of the 1969 Vienna Convention on the Law of Treaties. 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 regarded 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 constitutional character, is not a ‘multilateral treaty’ in the meaning of the U.S. reservation. Nicaragua, 1986 ICJ Rep. 96–97, para. 181. 1992 ICJ Rep. 70, 180. Nicaragua, 1986 ICJ Rep. 100, para. 188. 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. See Kelsen, General Theory (supra note 26), at 117–18.

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‘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 community. 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 constitutional 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 bylaws is impossible. The rules in question would only pretend to have constitutional 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 522 523 524 525 526

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

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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 community.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 community, 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 organization 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 international 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

528 529

See Tomuschat, International Law (supra note 177), at 89: ‘[t]he notion of an international community living under a common constitution’. See infra ch. 6, Constitutional Amendment. 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).

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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 constitutional 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 following the procedure set out in Articles 108 and 109 of the Charter. It is, therefore, 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 prevail 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

531

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. See Art. 64 of the Vienna Convention.

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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, including 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, identified 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

533

534

535

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.). 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). 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 protection 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). 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.

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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 bylaws’ 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 community, 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 obligations erga omnes represent a subset of international constitutional law.541 Given that the most characteristic feature of these obligations is their relation to community values and interests, this is not astonishing.542 The category of obligations erga omnes was advanced to give states who, according to traditional international law, were not affected by a breach of rules, ‘a legal interest 536 537 538

539 540 541

542

See Barcelona Traction, 1970 ICJ Rep. 3, 32, paras. 33–34. See the preamble and Arts. 1(3), 13(1b), 55, 62(2), 68 and 76. 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’). See Arts. 1(2) and 55. See also Arts. 73 and 76. See Weller, Reality of the Emerging Universal Constitutional Order (supra note 47), at 52. 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 international 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 obligations 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’. 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.

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in their protection’.543 This way, pivotal community values should be safeguarded 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 obligations ‘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

543 544

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See Barcelona Traction, 1970 ICJ Rep. 32, para. 33. 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. 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.). Though based on an assessment of specific legal interests of the UN, the same conclusion is arrived at by de Hoogh, Obligations Erga Omnes (supra note 317), at 114–27. 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 constitutional 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 interpreted 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).

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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 community. 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.

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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 character of the United Nations Charter any more specific consequences. Does a constitutional 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 following, 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

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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). 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). 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.

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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 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 understanding the instrument as a constitution.558 Quite the opposite 552 553

554 555 556

557 558

See Warbrick, The Principle of Sovereign Equality (supra note 482), at 212. 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. See supra ch. 4, Constitutional Characteristics of the UN Charter: ‘Eternity’ and Amendment. See Tomuschat, Obligations for States (supra note 176), at 251–52. 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’. See Franck & Nolte (supra note 415). 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,

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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 particular 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 conduct 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 compared 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 interpretation 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 inherent incompleteness of any constitution (‘dynamic-evolutionary’ or ‘objective

559 560 561

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]anipulating [the UN Charter] in order selectively to punish unpopular member states’). See infra, Constitutional Amendment. See Fassbender, UN Security Council Reform (supra note 29), at 307 et seq. Reservations to the Genocide Convention, Adv. Op., 1951 ICJ Rep. 15, 53 (Álvarez, J., dissenting). 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 RenéJean 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’.

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interpretation’).562 As the International Court of Justice declared in its 1971 advisory 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 international 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 community 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 “constitution”)’.565 Just as it was said about the U.S. Constitution, ‘constitutional interpretation 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 systematic 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

563 564

565 566

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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). Namibia (South West Africa), Adv. Op., 1971 ICJ Rep. 16, 31, para. 53. 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. See Ress, Interpretation of the Charter (supra note 115), at 19. See Edwin Meese III, Interpreting the Constitution, in Interpreting the Constitution (supra note 70), 13, 15 (originally published in 1986). See Certain Expenses of the UN, Adv. Op., 1962 ICJ Rep. 151, 162; see also ibid. at 167. 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’.

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‘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 préparatoires’ 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

570 571

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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). See Rosenne, Developments in the Law of Treaties (supra note 16), at 237. 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). A federation, James Bryce wrote, ‘almost necessarily implies a Rigid Constitution’, ‘for the component communities which are so uniting will of course desire that the rights of each shall be safeguarded’. Bryce, Constitutions 45, 52, 86 (1905). Certain Expenses of the United Nations, 1962 ICJ Rep. 168.

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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 relations’.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

574 575 576

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Ress, Interpretation of the Charter (supra note 115), at 15. See supra ch. 4, Universality and the Problem of Sovereignty. 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. 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 individual human being), see McDougal, International Law, Power, and Policy (supra note 130), at 160–62. 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’.

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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 community has established these constitutional organs and entrusted them with the task of applying the provisions of the Charter. From this responsibility, they inevitably derive the power of interpretation.582 This interpretation, which must consider 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.

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582

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. Ress, Interpretation of the Charter (supra note 115), at 15. 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. 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’.

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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 community. 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 community, 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 provided therein? The text of the provisions supports such a view.584 Article 108 begins 583 584

Competence of the General Assembly, 1950 ICJ Rep. at 9. 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

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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 compromise 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 follows: ‘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 corresponding practice. The ICJ approved of this concept of informal Charter modification 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 adoption 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

585 586

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’ ). See Karl et al., Comment on Art. 108 (supra note 389), at 1343. 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.)

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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

588 589 590

591 592

See also Hesse, Grundzüge (supra note 46), at 18–19, 29 (arguing that a constitutional amendment cannot be effected by interpretation or practice: ‘This limit is a necessary condition for the rationalizing, stabilizing and controlling function of a constitution’). See, in particular, Art. V of the U.S. Constitution. See Karl et al., Comment on Art. 108 (supra note 389), at 1346. 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 organizations. 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 appear 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 amendments … may also amend the Charter informally by spontaneous agreement’. See supra note 586. 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 permanent 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).

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(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 members, 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 constitution (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 according to, the constitution which has given life to them. By adopting the constitution, the members of the respective community place themselves under its protection, and accept the corresponding restrictions. Henceforth, their capacity 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 community, 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’596 593 594

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See supra ch. 3, The Traditional Dichotomy between ‘The International’ and ‘The Constitutional’. 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 caractére 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 constitution, lorsqu’ils ont prévu un mode spécifique de révision, ont entendu exclure tout recours à la coutume constitutionnelle’. See supra ch. 5, Constitutional Law and ‘General International Law’ and ‘Constitutional By-Laws’ of the International Community. See supra text accompanying notes 190 and 523.

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concluded under the legal umbrella of the Charter. They can be amended according 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 completely 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 simply prohibited their amendment. If a people wants to do away with these provisions, 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, paragraph 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

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For the relationship between jus cogens and constitutional law, see supra ch. 5, Constitutional Law, Jus Cogens, and Obligations Erga Omnes. For a comparative survey, see Peter Häberle, Verfassungsrechtliche Ewigkeitsklauseln als verfassungsstaatliche 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.). 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’.

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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 fundamental 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 constitutional 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) provided 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 constitution 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 constitution (popular sovereignty, fundamental rights, and pacifism)605 cannot be changed through the process of amending the constitution as determined in

600 601 602

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See, e.g., Gordon A. Craig, Germany 1866–1945, at 577 et seq. (1981). See Häberle, Ewigkeitsklauseln (supra note 598), at 600–09. The French provision read as follows: ‘La forme républicaine du gouvernement ne peut faire l’objet d’une proposition de révision’. See Grewe & Ruiz Fabri, Droits constitutionnels européens (supra note 34), at 58 et seq. 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). See the preamble and arts. 1, 9, 11 and 97 of the Constitution of Japan.

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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 inadmissible.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

607

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This information was kindly provided by Professor Norikazu Kawagishi (Waseda University, Tokyo). 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. 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. 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 européenne, Revue du Marché Commun et de l’Union européenne 343, 346–49 (1993). 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 diminution 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 individuals to the Court). See Neil Walker, Post-Constituent Constitutionalism? The Case of the European Union, in The Paradox of Constitutionalism (supra note 48), at 247. 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’

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the much older distinction between pouvoir constituant and pouvoirs constitués, as systematized by Sieyès, which implies that the institutions established by a constitution 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

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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. 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 constituant 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). See supra note 458. 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 réglementaires and articles fondamentaux in the French Constitution of 1814. The majority of scholars of the time was of the opinion that only the former, but not the ‘fundamental’ rules could be amended by the legislature. See Hesse, Verfassung und Verfassungsrecht (supra note 562), at 12. 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. 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.

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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 derogate 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 ‘amendments’ of the Charter would result in a legal order so different from the constitution 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

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623 624

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). See Häberle, Ewigkeitsklauseln, at 613. See also ibid. at 597. 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). 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. See Scheuner, Verfassung (supra note 75), at 180. See Louis Henkin, Elements of Constitutionalism 10 (Columbia University Center for the Study of Human Rights ed., 1994).

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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

626

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). 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

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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 better 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 responsibilities 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 ‘determined 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

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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 geographical 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’. Preamble of the Charter, para. 4. See supra text accompanying note 427. See supra text accompanying note 476.

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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 assumptions 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 existence 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 constitutional 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

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See Philip C. Jessup, A Modern Law of Nations: An Introduction 30 (1948). For a detailed discussion of the questions mentioned here, see Fassbender, UN Security Council Reform (supra note 29), ch. 10. See supra ch. 4, Constitutional Characteristics of the UN Charter: Universality and the Problem of Sovereignty. 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

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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 relating to treaties between Members and non-members is not at variance with existing 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 community 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 decisions 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 routinely 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’, respectively.638 In the present study I have tried to show that the Council was fully

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community, a departure from the accepted principle [that treaties cannot validly impose obligations upon third states] becomes unavoidable, in particular in the sphere of preservation of international 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 community, 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. Kelsen, The Law of the United Nations (supra note 359), at 116. That it is not possible consistently 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. See Köck, UN-Satzung und allgemeines Völkerrecht (supra note 115), at 92. 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 powers vis-à-vis third States. Members of the Security Council have never made it a point of principle, and the dissenting or abstaining States’ reluctance was in no case prompted by any reservations concerning the treatment meted out, through the all-States clause, to third States’. See Tomuschat, Obligations for States (supra note 176), at 255. 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).

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entitled to make such demands, as the Charter is binding upon all members of the international legal community. This community includes belligerent and insurgent bodies whose (limited) international legal personality is generally acknowledged.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 addressees of Security Council decisions.642 The same applies to associations and corporations 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

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See, e.g., Brownlie, Principles (supra note 21), at 63. 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). 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’. For the issue of ‘targeted sanctions’ against individuals and entities established by them, see supra text accompanying note 414. 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 NonState Actors as New Subjects of International Law 37 (Rainer Hofmann ed., 1999). 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.

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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 constitution of the international community, is binding on all subjects of international 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.650 645 646 647

648 649

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See Judgments of 21 Sep. 2005 (supra note 449), para. 243 and 193, respectively. Ibid., para. 257 and 207, respectively. 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. The Conference convened on April 25, 1945. Germany surrendered on May 7 and 8, 1945. 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. 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.

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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 international 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 independent 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 principles 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 community. This right to membership is particularly momentous if one realizes that

651

652

653

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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’. 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 community’ (Guatemala). Hans Kelsen, The Old and the New League: The Covenant and the Dumbarton Oaks Proposals, 39 Am. J. Int’l L. 45, 47 (1945). See supra ch. 5, ‘Constitutional By-Laws’ of the International Community.

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today ‘in most instances membership in the United Nations determines the existence 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 membership—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 membership’, had failed because of the opposition of the United States, the United Kingdom and France.660 655 656

657

658

659

660

See John Dugard, Recognition and the United Nations 167 (1987). See Leo Gross, Progress towards Universality of Membership in the United Nations, 50 Am. J. Int’l L. 791 (1956). See Jorri C. Duursma, Fragmentation and the International Relations of Micro-States: Selfdetermination and Statehood 134–42 (1996). 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 membership 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. See Konrad Ginther, Comment on Art. 4, in I The Charter of the United Nations (2d ed.) (supra note 115), at 177, 185. 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).

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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 independent 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 willingness 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 compelled to remain in the Organization against its will.663 While it is not clear 661

662

663

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). 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.) 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 become 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 security 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’.

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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 conclusion. 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 cannot 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

665 666

667

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 maintenance 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. See 1950 U.N.Y.B. 52, 74–77, 108–09, 415–16, 419–20. 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 consequences. 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 participation 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 representatives 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). 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 cooperation 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

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of the community organs still relies on consent, one can say that such participation 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 obligations under the constitution of the international community, it cannot be expelled from the constitutional community as such. This membership in the international 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 international community living under a constitution. In a domestic context, punishing 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

668

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)’. 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) (concluding, however, that the resolution of the League Council of 14 Dec. 1939 did not have the

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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

669

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). 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 resolution 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.

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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 drawing 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

671 672

673 674

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)). See Russell & Muther, A History of the United Nations Charter (supra note 373), at 362–63. 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 systematically all League business by voting against every proposal under consideration’. See Sohn, Expulsion (supra note 156), at 1398–99. 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.

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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 proposals 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 eliminated, because, on the one hand, the character of the International Organization should be universal 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 profoundly 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 demystification 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 international law has been widely accepted679—many differences of opinion about how

676 677

678

679

Arangio-Ruiz, The ‘Federal Analogy’ (supra note 230), at 3. 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’. 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’. 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

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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 identified, 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

680

681

682

683

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). 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’). 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). 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). 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);

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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

684 685 686 687

688 689 690

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). See European Convention Doc. 850/03 of 18 July 2003. Official Journal [of the EU] C 310, 16 Dec. 2004. Official Journal [of the EU] C 115, 9 May 2008. 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). But see Arangio-Ruiz, The ‘Federal Analogy’ (supra note 230). See Tomuschat, International Law (supra note 177), at 89 et seq. 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” ’).

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happens, some writers jumped onto a wagon which appeared to be increasingly popular, content with the interesting and progressive ring of the words ‘constitution’ and, especially, ‘constitutionalization’. Recently, Jürgen Habermas made an important contribution to a constitutional 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 constitutionalization 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 nonstate 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 691 692 693

694 695

696

See Habermas, Konstitutionalisierung des Völkerrechts (supra note 493), at 134. Ibid. at 143. See also at 159 et seq. 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) ). See supra text accompanying note 493. 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). See Neil Walker, Postnational Constitutionalism (supra note 214), at 28.

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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 resilient 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 ‘constitutional over-reach’—‘the tendency … to overstate the explanatory and transformative 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 language 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 697 698

699

700 701

Ibid. at 28 et seq. See, e.g., Niklas Luhmann, Verfassung als evolutionäre Errungenschaft, 9 Rechtshistorisches Journal 176, 203 et seq. (1990). 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). See Walker, Constitutionalism (supra note 32), at 18. See Antonio Cassese, International Law 202 (2nd ed. 2005).

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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 treaties 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 constitutional 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 PierreMarie 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 prolongement 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

703

704 705

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). See Arts. 193 and 194 of the revised Swiss Federal Constitution of 1999 (providing that amendments to the Constitution may not violate peremptory norms of international law). See, e.g., the separate opinion of Judge E. Lauterpacht, supra text accompanying note 532. Pierre-Marie Dupuy, L’unité de l’ordre juridique international (Cours général de droit international public), 297 Recueil des Cours 9, 306–07 (2002). See also ibid. at 310.

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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 international 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 community is supposed to play. Jus cogens basically consists of a number of prohibitions: 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 ‘international law of coexistence’.707 The ‘naked’ prohibitions of jus cogens do not provide for a procedure – let alone an organizational structure – for their implementation.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 international community is of course the primary purpose of the UN Charter. The Charter is an authoritative statement of the fundamental rights and responsibilities 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 important community institutions. In that respect, no other existing legal text equals the Charter.

706

707 708

709

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’. See Friedmann, The Changing Structure (supra note 14), at 62. 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. Paulus, Jus Cogens (supra note 529), at 330 et seq.

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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 probably classify the Charter as something more than a treaty yet less than a world constitution’.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 characterization 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

711

712

713 714 715 716

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). 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). 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’. See Tomuschat, International Law (supra note 177), at 88. See Crawford, Multilateral Rights and Obligations (supra note 5), at 371–79. Ibid. at 372, 381. See ibid. at 381: ‘No doubt the existence of a constitutional system and its substantive effectiveness 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

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convinced that the success of a constitutional reading of the UN Charter will ultimately 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 institutional backbone, is called into question. The members of the international community 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 blackand-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 occupies 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 diplomacy 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’.

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not become the center of international economic and social cooperation as envisaged by Chapters IX and X of the Charter, does not refute a constitutional qualification 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 criminal law, or tax law, or, indeed, constitutional law.

Rediscovering a Constitution ‘[I]t would be surprising’, David Kennedy recently said, ‘if the new [constitutional] 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 especially 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 717 718

719

720

See H.L.A. Hart, The Concept of Law 215 (1961). 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). See J.H.H. Weiler, On the Power of the Word: Europe’s Constitutional Iconography, 3 Int’l J. Const’l L. 173 (2005). Allott, Eunomia (supra note 678), at 418.

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(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 international law and relations, and of the Charter’s quality as the foundational document 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 politics 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 international society continue to be so deaf? A part of the answer may be that the explanation 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 discourse 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 international 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 Elimination of all Forms of Racial Discrimination, the Convention on the Prevention

721

See supra, Introduction.

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and Punishment of the Crime of Genocide, and the Rome Statute of the International Criminal Court (ICC). In this sense, the Charter can be understood 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 distinguished 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 subsidiarity as a principle which can guide the allocation of competencies in a multilevel 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 organization 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 advancement 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

723

724

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). 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. See Klabbers (supra note 690).

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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 formally 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 constitution. But even in this case the idea of a constitution of the international community 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 element of that order, whether the word is used or not. And just as much as the idea

725 726

727

See Fassbender, Sovereignty and Constitutionalism (supra note 476), at 128 et seq. 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). 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.

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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 international 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 importantly, the constitution of the international community as a whole. Good arguments support the view that the UN Charter has had a constitutional 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 interpretation, 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 governing the organization and performance of governmental functions (‘frame of government’) and the legal relationship between the government (broadly understood) 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 welfare, culture, international peace or the protection of the natural environment,

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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 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 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 nineteenth 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 influenced 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 particular 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.

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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 particular 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 community 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 identifies 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 constitutional 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 cautious 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 procedural 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

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establishing and preserving peace and legal order – is still of central importance. Classical goals of constitutionalism – like the security and freedom of the individual 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 international 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 constitutional convictions in an international family of constitutional states. In this transformed 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, 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 which provide for the possibility or even goal of supranational integration. I agree with Konrad Hesse who broadly defined a constitution as the fundamental 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 international 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 individuals. 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’).

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Although the expression was not used with regard to intergovernmental organizations 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 contrast to the old society of states, the new international community includes all subjects of international law, and ultimately all human beings. Particular (or special) 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, differences 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 sufficient 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 personality 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 community, 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

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‘functional’ universal organizations established to further cooperation of states in narrowly defined fields, the UN has a much broader, and highly political, mandate. 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 international 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 international communiy school shied away from taking the decisive step and qualifying 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 phenomenon 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 recognized 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 enormously 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 renunciation of the traditional concepts of sovereignty and bilateralism. (2) The Charter is secondly an expression of a constitutional program: It outlines a new world order in which international peace and security, broadly understood, 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 instruments. 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.

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(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 authority 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 constitutional 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 selfdetermination, decolonization, human rights, the fight against racial discrimination, 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 different 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 incomplete as far as membership in the international community is concerned (provision 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

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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 international 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 ratification 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 suggest 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 constitution 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,

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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 constitutions’, 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 reviewing the present Charter’ (Article 109, para. 1) in order to readjust it to new conditions 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 hierarchy 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 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. 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, regardless 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,

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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 constitutional 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 customary law supplementing the Charter in areas where the Charter has set out comprehensive 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 international 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 peremptory 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 constitutional 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 international 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.

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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 obligations 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 community values and interests.

Chapter 6 Consequences From the constitutional character of the UN Charter a number of specific consequences 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 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. The Charter is a living instrument. It is the basis of a system which is in constant 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 understanding 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 character 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

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interpretation is of special significance. It gives due weight to the object and purpose 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 limited 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 everybody 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 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 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 requires 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

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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 governmental 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 inadmissibility 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 purposes 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

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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 entitlement, 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 proposition of a constitutional right to membership. However, at the present stage of the constitutional development of the international 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 becoming 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 obligations under the constitution of the international community, it cannot be expelled from the constitutional community as such. This membership in the international 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 inadmissible 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 participate 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 violation, 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.

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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 constitutionalism 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 institutions 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 international 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 international 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 retrospect 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 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

B 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

as defined by Hans Kelsen 15–16 as defined by Hermann Heller 17–18 as defined by Konrad Hesse 16 as defined by Rudolf Smend 16 as higher law 19–20, 23–24 as the fundamental legal order of a public community 23, 59 aspires to eternity 107 bill of rights 23 consented constitution 62 customary constitutional law 139 defines members of constitutional community 101–03 definition 13–26 distinction according to the respective community 61 distinction between treaty and 62, 139 establishes hierarchy of norms 103–04 flexible and rigid 24, 133 n.572 ‘global civil constitutions’ (globale Zivilverfassungen) 163 historical origins 55 ideal type 82–85 implementation and enforcement 25 in an absolute and a relative sense 17 in a formal and a material sense 15, 17–18, 22, 29–30, 46, 53 n.213, 122 in a logical and a positive sense 15 in a normative sense 33, 83 inclusiveness 109 integrative function 16, 38 n.137, 60, 65, 74, 82 interpretation 134–35 non-consensual character 47, 64 n.259 plurality of constitutions 61 substantial meaning 24 substantive concept 46 unamendable provisions 140–45 universal spread of concept 56–57 universality 109 Western roots of concept 56 Constitution of Brazil (1891) 141 China (1923) 141 Ecuador (1861) 141 European Union 61, 63 n.256, 106, 109, 142, 160, 170

207

France (1791) 25 (1793) 107, 143 (1814) 89, 141, 143 n.615 (1875) 141 (1958) 141 Germany (1867) 63 (1871) 63 (1919) 140 (1949) 58 n.228, 95, 99 n.416, 101 n.431, 140–42 Greece (1864) 141 (1975) 141 Italy (1947) 60 n. 239, 141 Japan (1946) 69–70, 141 n.605 Korea, Republic of (1948) 141 (1960) 141 North German Confederation (1867) 63 Norway (1814) 63 Portugal (1911) 63 (1976) 63 Saxony, Kingdom of (1831) 62 South Africa, Republic of (1996) 56–7 Spain (1978) 60 n.239 Switzerland (1874) 144 (1999) 99 n.416, 142 Turkey (1924) 141 (1961) 141 (1982) 141 United States of America 7 n.23, 19, 58 n.228, 63, 64 n.262, 88–91, 95, 101 n.431, 132, 133, 138 n.588, 167, 168 Virginia (1776) 24 Württemberg (1819) 62 constitution of the international community amendment 124. See also Charter of the United Nations, amendment and basic functions of governance 45–46, 49, 94–101 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

Index

209

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 Establishing 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

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

F 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

H 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 Hobbes, Thomas 62, 162 Holy See 76 n.315, 134 homogeneity, concept of 72–73 human rights erga omnes obligations 125–6 European Convention 50, 104

G Gemeinschaft 71 n.293 general international law, relationship between UN Charter and 118–23 general principles of law 33, 48, 54, 84, 122, 167

210

Index

International Covenants 48, 169 monitoring 130 obligations under UN Charter 48, 73 Universal Declaration 102, 130 I 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 legislative function 95–97 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

Index

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 advisory 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 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 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

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 law of the sea 48, 120 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, 104, 121, 124–25 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 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 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 ‘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 Rawls, John 62 reception, as procedure of lawcreation 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 representativeness, as a principle of UN 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 proposals for reform 9 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

Index

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

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 participation 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

Index

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

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