The United Nations Charter as the Constitution of the International Community

Bardo Fassbender, LL.M. (1992), Yale Law School, Dr. iur. (1997) and Dr. iur. habil. (2004), Humboldt University Berlin, is Professor of International Law at the Bundeswehr University Munich, Germany. He taught at the universities of Berlin, Munich and St. Gallen. Among his many publications on international law and the United Nations is UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Kluwer Law International, 1998).

The a oeconstitutionalizationa of international law is one of the most intensely debated issues in contemporary international legal doctrine. The term is used to describe a number of features which distinguish the present international legal order from a oeclassicala international law, in particular its shift from bilateralism to community interest, and from an inter-state system to a global legal order committed to the well-being of the individual person. The author of this book belongs to the leading participants of the constitutionalization debate. He argues that there indeed exists a constitutional law of the international community that is built on and around the Charter of the United Nations. In this book, he explains why the Charter has a constitutional quality and what legal consequences arise from that characterization.

Preface Introduction The UN Charter in Constitutional Perspective The Structure of my Argument 1. 'Constitution', and its Association with the Modern State Constitutional Theory in Europe between the two World Wars American Constitutional Theory: The Constitution as 'Higher Law' and as a 'Living Institution' Typical Constitutional Features 2. The Transfer of the Constitutional Idea to the Sphere of International Law: Different Approaches Alfred Verdross and his School The New Haven School The Doctrine of International Community Constructivism 3. The International Community and its Constitution A Challenged Notion The Traditional Dichotomy between 'The International' and 'The Constitutional' International Community and International Constitution The International Community as a Constitutional Community International Community, Constitution, and Organization 4. The UN Charter as a Constitution The Charter and Non-UN Member States: Doctrinal Deficits The 'Ideal Type' of a Constitution as a Standard of Comparison Constitutional Characteristics of the UN Charter A 'Constitutional Moment' A Constitutional Program A 'Charter' Constituent Power and Constitutional Form Constitutional History A System of Governance Definition of Membership Hierarchy of Norms 'Eternity' and Amendment Universality and the Problem of Sovereignty 5. Conceptual Distinctions The Dual Constitutional Function of the UN Charter The Normative and the Real Constitution of the International Community Constitutional Law and 'General International Law' 'Constitutional By-Laws' of the International Community Constitutional Law, Jus Cogens, and Obligations Erga Omnes 6. Consequences The Charter as a Living Instrument Constitutional Interpretation Constitutional Amendment Freedom and Restraint of Security Council Reform Non-Member States Legal Persons Other than States as Addressees of Security Council Decisions Admission and Expulsion of UN Member States Conclusion Constitutional Discourses Past and Present Rediscovering a Constitution Synopsis Bibliography Index