The United Nations Charter as the Constitution of the International Community


Bardo Fassbender



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The United Nations Charter as the Constitution of the International Community
Leiden/Boston: Martinus Nijhoff PublishersKoninklijke Brill NV, 2009 (Series: Legal Aspects of International Organization, Bd. 51)
xii, 216pp., hardback € 90,00
ISBN: 978-90-04-17510-5



Short Description

The “constitutionalization” 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 “classical” 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.




Table of Contents



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