Dialectics of a global constitution: The struggle over the UN Charter

Abstract

As a decentralized legal order, the international system arguably has no single constitution, but the closest candidate to a constitution that it does have is the UN Charter. Thus it is worth exploring how constitutional the Charter is in theory and practice. Sixty-plus years into its evolution we can see two dominant features. First, its key constitutional elements are: supranationality in its various forms; inequality; and, like all constitutions, an ‘invitation to struggle’ that leads to inevitable pushback from states when UN authority expands. Second, unlike in many domestic constitutions, the pushback more than holds its own. The UN has neither integrated its parts nor centralized authority. To illustrate those points, I start with a comparison of the UN Charter to both capital ‘C’ domestic constitutions and to ordinary treaties. I then address with a broad brush the main features of the UN’s supranationality and inequality. The Secretariat and its neutrality and independence are the next topics. I then consider two examples of tension between UN supranationality and sovereignty. I explore the trend toward ‘global legislation’ associated with the Security Council’s counter-terrorist resolutions, 1373 and 1540. I then focus on the example of the Millennium Development Goals, the UN’s recent attempt to remake itself as a development body. I conclude with a discussion of the wider constitutional significance and prospects of the UN in the light of the contrasting success of the history of US federalism and European integration.