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

Abstract

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.