Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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My colleague and friend George Bermann is the doyen of scholarly studies of international transactions.  But he has also been acutely concerned with the differences that diverging legal contexts make – whether they are national, regional or global.  I thus think he would be interested in the question of whether and, if so, how constitutional the global legal order is and whether, in particular, the Charter of the United Nations (UN Charter) can be sensibly seen as the globe’s constitution.

The countries of the globe are increasingly interdependent, but do they share a coherent legal order, assigning authority to decide rights and responsibilities? Few would choose the description “coherent” for the global order, if that connotes a centralized and coherent legal order. Even as a decentralized legal order, the global international system has no single constitution overseeing the whole. Still, the closest candidate to a global constitution is the UN Charter. Thus, it is worth exploring how constitutional the Charter is in theory and practice. Seventy-five years into its evolution, we can see the following two dominant features:

First, we can see that the Charter is not like a national federal constitution – e.g., the Constitution of the United States of America (US) – but neither is it an ordinary contract-like treaty. Its key traits in comparison to other international treaties are three: supranationality; inequality; and an “invitation to struggle” that leads, as in many constitutions, to an inevitable dialectic, including pushback from States when UN authority expands.

Second, UN integration has “spilled around” more than “spilled over” into deeper cooperation – to borrow the language of 1970s international integration. The UN, unlike either the European Union (EU) or the US, has neither integrated parts nor centralized authority.