1. In expressing the idea that the Charter of the United Nations is o r has become "the constitution of the international community", one must always be conscious that such an expression entails for a part a metaphoric dimension.
The international legal order remains more characterized b y the spread- ing of sovereignty than by the overall normative and organic subordina- tion of states to an international public order embodied in the text of a Charter that would at the same time provide for a central authority aimed at enforcing the "constitutional" rules characterising that public order.
What the ICJ said in 1949 remains true: the United Nations is not a
"super-Statexs7.
That being said, the assertion that the creation of the United Nations has introduced a radical change in the structure of international law, which was made by a series of authors including FriedmanS8, LachsR9, Schach-
S6 See M. Reisman, "Haiti and the Validity of International Action", AJIL 89 (1995), 82 et seq. Y. Daudet (ed.), La crise d'Haiti (1991-1996), 1996;
0. Corten, "La risolution 940 du Conseil de sicuriti autorisant une inten~ention militaire en Hai'ti: L'imergence d'un principe de ligitimiti dimocratique en droit international?" EJIL 6 (1995), 116 et seq.
57 ICJ Reports 1949, 174 (179).
8 8 W. Friedmann, The Changing Structure o f International Law, 1964.
8 9 M. Lachs, "The Development and Trends of International Law in our
Time", RdC 169 (1980), 9 et seq.
The Constitutional Dimension of the Charter Revisited 3 1 ter93, Virally91 or R.J. DupuyS2 has likewise proved to be true over the last fifty years.
2. In particular, on the normative front, the development of United Nations law through the activity of its principal organs, notably the General Assembly (during the sixties and seventies), the Security Council (during the first half of the nineties) and, in some decisions, the ICJ9' has enhanced the seven principles contained in Charter Arts. 1 and 2 as reiterated in A/RES/2625 (XXV) of 24 October 1970. This demonstrated the vocation of the Charter to serve as t h e text of reference. It does not entail each and every of the "essential obligations" binding o n all members of the international community. Nevertheless, the Charter, together with its further normative developments set forth the most comprehensive among them. As such, it establishes a substantial and logical link between all of these "essential obligations".
Thanks to the intimacy of their connection with the Charter, these obligations are practically all connected to the overall universal obligation t o promote peaceful international relations in conformity with Article 2 para. 4 which realizes the ratio legis of the basic principles laid down in the Charter. A striking demonstration of this dynamic of integration has been demonstrated, among other examples, b y the way in which the Security Council was able to welcome into the scope of the Charter the defence of those rules of humanitarian law "which are beyond any doubt part of customary international law", as it was accurately noticed recently by the ICJ in its Advisory Opinion on the Legality of the Threat o r Use of Nuclear Weapons, of 8 July 1 9 9 6 ~ ~ .
3. More generally, and this brings us to the organic o r institutional dimension, the way in which the Security Council has expanded the scope
9
"
. Schachter, "International Law in Theory and in Practice", RdC 178 (1982), 9 et seq.
91 M. Virally, "Panorama du droit international contemporain", RdC 183 (1983), 9 et seq.
92 R.J. Dupuy, "Communautt internationale et disparitis de diveloppe- ment", RdC 165 (1979), 9 et seq.
93 See P.M. Dupuy, "Le juge et la rtgle ginirale", RGDIP 93(1989), 569 et seq.
94 ILM 3 5 (1996), 828 para. 81. The Advisory Opinion refers in this para- graph to the Report of the Secretary-General introducing the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. This Report was unani- mously adopted by the Security Council with S/RES/827 (1993) of 25 May 1993.
of Chapter VII, in particular through an enlarged acceptance of the concept of "threat to the peace", gave during a short period (1990-1993) some consistency to the idea that, as the organ primary responsible for the maintenance of international peace, it would become the promoter and defender of the universal respect due to these essentlal obligations, as defined above (see above under 1.2-7).
4. However, the quick, but effective loss of credibility of the Security Council after the conjunction of different factors among which some of its decisions having taken place from 1993 onward demonstrate that its capital, in terms of legitimacy remains rather fragile. Now, this is a crucial element for the support and enhancement of its role as the "World Executive". The condition for the promotion of an extended concept of
"threat t o the peace" enabling the Security Council to act as the defender of the international public order depends o n its recognition as such by "the international community as a whole".
This Security Council's legitimacy is in particular dependant o n the fitness of its permanent members (especially the most powerful among them) for the taking of initiatives and decisions that represent effectively the will of the international community and not the achievement of their own foreign policy. The idea of a "constitutional crisis" affecting the United Nations is then to be viewed with some caution. It is true that a better balance of power between the General Assembly and the Security Council o r a real control of the legality of its actions could be thought of in theory and, eventually, in practice95. It is likewise true that a modifica- tion of the composition of the Council must be envisaged, in order to make it more representative of the actual distribution of power among nations.
The procedural and political difficulties for a revision of the Charter should, however, not be underestimated.
5. Nevertheless, the promotion of the Charter as the effective and stable constitution of the international community constitutes a challenge of particular importance. There are many reasons for that, both political96 and The Charter of the United Nations is at the same time apolitical
95 See J. Alvarez, "Judging the Security Council", AJIL 90 (1996), 1 et seq.
(38-39).
96 Behind the illusion of a world community reconciled by an apparent common belief in the virtues of free trade and democracy, the divorce of mentalities and immediate interests remains as huge as before the "end of the Cold War".
97 There is a real legal technical concern and an element of threat placed on the international legal order which makes this issue even more stringent.
It consists in the dissemination of treaty based regimes establishing each for itself, their mechanisms of sanctions and settlement of disputes, as
T h e Constitutional Dimensior. of the Charter Revisited 3 3 project a n d a legal c o m m i t m e n t f o r its m e m b e r states as well as a binding treaty a n d p r o g r a m m e of ambitious cooperation. I t is a t t h e same time t h e basic covenant of t h e international c o m m u n i t y a n d t h e w o r l d constitution, already realised a n d still t o c o m e .
dc~nonstrated in particular in human rights law, in environmental law, o r in s o m e branches of international economic law. The advantages of such
"follow-up mechanisms" in terms of impIementation and, even, of en- forcement of treaty obligations is striking. Nevertheless, the way in which they could be worked out o n the false assumption that each of them constitutes a "self-contnzned regzme", more o r less autonomous and independent from the general framework of the international legal order creates a real danger of thc legal fragmentation of this order. O n e of the means aimed at safeguarding its unity would consist in the effective p r o n ~ o t i o n of the Charter as the substantial and organic constitution of the international community. See P.M. Dupuy, "The International Legal O r d e r : U n i t y o r Fragmentation? ", f o r t h c o m i n g