This paper examines the competences of the UN Security Council under the “constitution” of the United Nations, focusing in particular on its recent innovations in legislation. Certain critics decry Council legislation as unconstitutional, null and void. Apologists retort that the Charter delegates broad power to the Council, and the impugned legislative Resolutions fall well within the broad textual limitations on its competence. I propose an approach to constitutional analysis to help cut through this debate, based on distinguishing between two perspectives on the “constitution” of an international organization: the juridical perspective emphasizing the transmission of validity in the creation, interpretation, and application of legal norms (constitutionality/unconstitutionality); and the political perspective from which the ordering of power among the constituted bodies may be assessed in terms of legitimacy and justice (e.g. the political-theoretical language of constitutionalism). Distinguishing between the perspectives illuminates the merits of the arguments on both sides of the debate on the Council’s competences. Juridically speaking, it is difficult to argue that the Council’s innovations are unconstitutional and void. Yet the political perspective helps explain the critics’ discomfort with the Council’s expansive innovations; from the latter angle it appears that the Charter’s broad, unreviewable, and effectively unamendable delegation of power to the Council yields a deeply flawed constitutional arrangement, entailing systemic risks of hegemonic international law-making and the demise of constitutionalism.

Constitutionality and Constitutionalism Beyond the State: Two Perspectives on the Material Constitution of the United Nations

The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing conversation on the very nature of international law. In this context certain foundational aspects may be labelled as the system’s ‘constitutional processes’. The primary argument presented in this article is that principles and ‘general principles of law’, two frequently overlooked categories of norms, are particularly useful tools for the enhancement of these constitutional processes. While often conflated, principles and general principles are distinct, performing different roles in the architecture of the international legal system. Renewed attention and debate on the norms beyond treaties and custom is critical for the enhancement of international law’s systemic features. Two broad examples are given in support of this claim. First, general principles of law have the potential to add substance to the notion of an international community and the role of this community in the creation of international norms. Second, the legal framework for the judicial settlement of international disputes can be rendered more robust through the use of principles and general principles of law. While attempting to redesign or reconceptualise the system, constitutionalists have failed to actually engage with the system. Yet, the popularity of the constitutionalism debate presents an opportunity to re-examine the system’s constituent norms and consider their potential to strengthen international law’s constitutional processes.

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The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law

A growing body of interdisciplinary scholarship addresses the issue of global constitutionalism. Scholarly contributions analyze the allocation of power within rule-systems of international law, how it affects subsequent international practice and its connection with political institutions. This article questions the validity of the use of constitutional concepts as a means for interpreting international law. An argument is made that current contributions on international constitutionalism are grounded on unstated assumptions. It is maintained that in order to restore coherence and unity within the international legal system, interpretations of international law should be carried out through interpretive means that are specifically conceived for international law. This article shows that although constitutionalism may be featured as an autonomous concept of international law, it is not able to restore coherence and unity within the international legal system. Therefore, it cannot be regarded as a remedy to the phenomenon of fragmentation.

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Fragmentation and Constitutionalisation of International Law: A Theoretical Inquiry

The United States (US), a Signatory, but not a State Party, to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all Rome Statute State Parties prohibiting the arrest, surrender, or prosecution of the U.S. Head of State before the ICC. Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the US BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statue 2002.

http://ddms.usim.edu.my:80/jspui/bitstream/123456789/19332/1/The%20Obligation%20To%20Prosecute%20Heads%20Of%20State%20Under%20The%20Rome%20Statute%20Of%20The%20Internatonal%20Criminal%20Court%20%28Icc%29%20And%20Customary%20Internation.pdf

The obligation to prosecute heads of state under the rome statute of the internatonal criminal court (icc) and customary international law: the african and u.s. perspectives

In its Advisory Opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, delivered in 2019, the International Court of Justice (ICJ) was of the view that the decolonisation of Mauritius by the United Kingdom had not been lawfully completed when it achieved independence in 1968. This was due to the separation of the Chagos Archipelago in 1965. After dismissing various challenges to the exercise of its advisory jurisdiction, including the argument that the issue at stake was a territorial dispute between the States and that its jurisdiction was, therefore, being misused to circumvent the UnitedKingdom’s lack of consent to contentious proceedings, the ICJ felt it necessary to explore the nature, scope and content of the right to self-determination and whether it had been validly exercised in this instance. The ICJ found that self-determination had become established as a legal right in the context of decolonisation by the time Mauritius was in the process of securing its independence in the 1960s and that a corollary of the right was that of the territorial integrity of a non-self governing territory, which had not been respected in the case of Mauritius. Accordingly, the United Kingdom’s continued administration of the Chagos Archipelago constituted an ongoing internationally wrongful act, entailing international responsibility, which the United Kingdom was under an obligation to put an end to as soon as possible. While it was for the United Nations (UN) General Assembly to determine how the decolonisation of Mauritius was to be realised, in view of the fact that the right to self- determination has an erga omnes character, the ICJ called on all States to co-operate with the UN to that end.

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Self-Determination in Light of the International Court of Justice’s Opinion in the Chagos Case

Commentary on the Decision on Charles Ghankay Taylor's motion for partial voluntary withdrawal or disqualification of Appeals Chamber Judges, Prosecutor v. Taylor, Case No. SCSL-03-1-T, T. Ch. II, 13 September 2012

Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

Brexit: Is everything going to change in law, so that very little would change in fact?

Commentary on the Decision on the Prosecutor’s Request for Subpoenas, Prosecutor v. Bangura, Kargbo, Kanu and Kamara, Case No. SCSL-2011-02-T, T. Ch. II, 28 June 2012

Craig Eggett

Papers

The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law

Commentary on the Decision on Charles Ghankay Taylor's motion for partial voluntary withdrawal or disqualification of Appeals Chamber Judges, Prosecutor v. Taylor, Case No. SCSL-03-1-T, T. Ch. II, 13 September 2012

Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

Brexit: Is everything going to change in law, so that very little would change in fact?

Commentary on the Decision on the Prosecutor’s Request for Subpoenas, Prosecutor v. Bangura, Kargbo, Kanu and Kamara, Case No. SCSL-2011-02-T, T. Ch. II, 28 June 2012