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).

All those interested in the fundamental structure of the present international legal order, the place and function of the United Nations and the UN Charter in that order, and international legal theory.

"Among the many books or articles on the subject, Fassbender’s is by far the clearest exposition of what international constitutional theory can achieve. Rare among constitutionalists, his theory is not just wishful thinking but a legally argued construction and conclusive in se – provided one accepts the author’s axiomatic defi nition of a constitution. It is an update of the Verdrossian concept, fi rst expressed in Die Verfassung der Völkerrechtsgemeinschaft
(The Constitution of the International Legal Community) of 1926, to which Fassbender explicitly refers (pp. 28-36). Fassbender has refi ned the concept and adjusted it to current conditions. It is a specifi c construction of what already
exists and, unlike idealistic concepts, does not propose to remodel the international legal order, but only to apply it differently in the light of the fundamental values expressed in the Charter as supreme law of the international community."

- Karl Zemanek, Austrian Review of International and European Law, 2008

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