Introduction

Since the collapse of the Soviet Union and the end of the Cold War, the Security Council of the United Nations has intensified its work in a way unimaginable in the long period of bipolar stalemate that had begun only a few years after the founding of the United Nations and lasted for some forty years. Lifted up by a wave of post-Cold War enthusiasm, the Council both greatly increased its efforts in its ‘traditional’ area of responsibility – the maintenance of inter-state peace and security – and expanded its mandate to new fields and issues, among them the fight against global terrorism, democratisation and the protection of human rights. In the meantime, the enthusiasm of the 1990s with its perhaps exaggerated hopes subsided, but the new powers claimed by the Council in the last fifteen years have not been called into question. On the contrary, and somewhat astonishingly, these powers have been generally accepted by the members of the international community, and are awaiting new situations in which the Council will use them.

As a consequence of the sharply growing activities of the Council, a discussion has arisen regarding the scope, and possible sources, of the Council's international legal obligations. Is the Council, when discharging its responsibility under the UN Charter, bound by rules of international law, and if so, by which rules exactly? In particular, the issue of the Council's human rights commitments has attracted a great deal of interest.

“[I]t would be surprising,” David Kennedy said in his very perceptive contribution to this volume, “if the new [constitutional] order were waiting to be found rather than made.…If there is to be a new order, legal or otherwise, it will be created as much as discovered.” I felt caught in flagrante delicto because that was exactly what I had tried to show some ten years ago in an article titled “The UN Charter as Constitution of the International Community” – that we can rediscover a constitutional quality of the Charter that had been there right from the start but that had fallen into oblivion in the meantime. In the words of my article:

If the failed European Constitution of 2004 was a “treaty which masqueraded as a constitution,” the UN Charter is a constitution in the clothes of a treaty, because no other garment was available in 1945.

However, David Kennedy's skepticism is understandable. Whenever a rather small group of people claims to see something invisible to all the others, suspicion is well founded.

Two faces of a problem: sovereignty and constitutionalism in international law

At the end of an article about the concept of sovereignty in international law, I quoted Hans Kelsen and Wolfgang Friedmann. In spite of all their differences both legal scholars were strong supporters of an international constitutional order. It was, in fact, Friedmann who first produced a sketch of international constitutional law as a ‘new field of international law’. In the late 1920s, Kelsen referred to his time as a transitional period in the history of international law, and saw this character reflected in the ‘contradictions of an international legal theory which in an almost tragic conflict aspires to the height of a universal legal community erected above the individual states but, at the same time, remains a captive of the sphere of power of the sovereign state’. Almost 40 years later, Friedmann arrived at a very similar conclusion when he wrote: