1. The normative content of an international constitution

The first part of this analysis concentrates on the normative content of the international legal order – arguably constitutional norms. The Fundamental Rules of the International Legal Order is a collection of articles in English and French resulting from a meeting in 2004 at the Humboldt University in Berlin of the Société française pour le droit international and the Deutsche Gesellschaft für Völkerrecht, the purpose of which was to discuss problems raised by the distinction between rules of international law according to a criterion of hierarchical superiority or inferiority. The importance of this collection of scholarly contributions is that it continues the important debate concerning not only the content of the rules of international legal order but also what effect these rules might have on the international legal system. This work is very much a logical next step in the scholarship of Tomuschat, who delivered influential Hague Academy of International Law lectures about the nature of the international legal system based on a hierarchy of international legal norms.Footnote ¹³

Various contributions discuss the identification of norms of jus cogens and the difficult notion of obligations erga omnes. This is an excellent place to start any discussion of an emerging constitution, as any formalized structure must begin, and be built around, a set of core values. For example, Stefan Kadelbach identifies diverse sources of these fundamental norms, such as the early prohibition against slavery, the first Geneva Convention (1864) and the Hague Conferences of 1899 and 1907 on the laws of war, and more recent activity, such as the International Law Commission's work on drafting articles of state responsibility and the House of Lords Pinochet case and the Distomo case in Greece, which used jus cogens as grounds for not granting sovereign immunity (pp. 22–3). Importantly, he distinguishes between these two concepts, in that every violation of a norm of jus cogens will not necessarily trigger obligations erga omnes. The violations have to be massive and widespread (pp. 23–6). One could disagree with this view and argue a slight variation, that the violation must have the capacity to be massive and widespread, so that the responsibility on the international community to act should be triggered at an earlier stage than the actual extermination of human beings. Kadelbach identifies norms which, in his view, are examples of both concepts: the prohibition against aggressive war, genocide, crimes against humanity, war crimes, the core elements of humanitarian law and the human rights conventions, the right of peoples to self-determination, and the protection of the environment from severe and lasting degradation (p. 27). Stefanie Schmahl and Philippe Weckel give a specific example of the application of jus cogens to prisoners of war. Schmahl argues that it is necessary to separate the Third Geneva Convention provisions from customary law, but goes on to argue that inasmuch as humanitarian minimum standards are in question, the status of special protection for prisoners of war is a classic example of a peremptory norm of general international law (p. 66). One might take issue with the Kadelbach listing as being more extensive than usual, since not all humanitarian law and human rights conventions are accepted as being fundamental norms, and some might also argue about the environment, but his careful analysis points to extensive judicial analysis of these issues.Footnote ¹⁴ In spite of this minor point these norms certainly seem to be essential elements of the international legal order and thus values of an emerging constitution. It must represent the first element of the international constitution: that these norms are values that are considered binding on the international community as a whole.

However, Paul Tavernier sounds a realistic note of caution with respect to state practice and observes that consensus about the notion of jus cogens disappears when it comes to its definition and content. He illustrates this point by discussing the objection by France to the Vienna Convention on the Law of Treaties because of the inclusion of Articles 53 and 64 on jus cogens. In spite of this difficulty, Tavernier connects these intransgressible and non-derogable rules with obligations erga omnes, and argues that rules such as these have to be binding on all states (pp. 1–2). Władysław Czapliński continues this theme and discusses the concept of jus cogens in relation to the law of treaties. He reveals that the record of international courts is disappointing, as the judiciary has been unwilling to accept all the consequences of the peremptory nature of fundamental legal norms, save for the practice in the International Criminal Tribunal for the former Yugoslavia. He argues provocatively that future developments will ‘confirm the place and role of jus cogens in the contemporary international community’ and that this would ‘require States to agree upon important restrictions concerning their sovereignty and freedom of action’ (p. 97). He asserts that the principles of state responsibility for violations of these obligations should be supported by the International Criminal Court. This would indeed constitute a vision of a properly functioning international legal system with a judicial arm.

There are several other contributions that discuss the enforcement of these common norms. Stefan Talmon and Théodore Christakis discuss the duty not to recognize as lawful a situation caused by serious breaches of norms of jus cogens as set out in the Articles of State Responsibility drafted by the International Law Commission. Elisabeth Lambert-Abdelgawad, Thomas Giegerich, Isabelle Pingel, Torstein Stein, and Christian Hillgruber discuss other issues in the enforcement of fundamental norms, including: the notion of reparations for international crimes, the relationship of state immunity to responsibility, and the right of third states to take countermeasures. Matthias Ruffert and Jean-Marc Thouvenin discuss the role of the International Court of Justice in case of violations of fundamental rules of the international legal order. Ruffert poses the question of whether the International Court of Justice should be endowed with special jurisdiction when fundamental rules are infringed, and points out the strong tension between traditional state-oriented principles and a community-based legal system (p. 295). Finally, a group of scholars – Andreas Zimmermann, Michel Cosnard, Georg Nolte, and Jean-François Flauss – discuss notions of both universal criminal jurisdiction and universal civil jurisdiction as techniques for individual responsibility for violations of fundamental norms (pp. 335–416). All of these contributions point to the myriad ways in which fundamental norms can impact sovereign states and how violation of these norms will trigger enforcement mechanisms, which, although imperfect and underdeveloped, are growing in importance within international law.

Alain Pellet and Christian Tomuschat end this important collection with a theoretical discussion of the importance of these fundamental norms. Pellet lends his strong support for Article 53 of the Vienna Convention on the Law of Treaties and the existence of established norms of jus cogens. Using the examples of a hypothetical new Hitler who perpetrates genocide, as well as the efforts of the Bush administration in changing the rules on the use of force, Pellet highlights the continuing problem of enforcement, including the lack of criminal responsibility of states (pp. 420–2). Tomuschat also provides an excellent conclusion to this work and the seeds for future work for legal scholars. He argues that if human rights are to be taken seriously, international law cannot accept as lawful acts that ‘destroy the fabric of civilized co-existence enabling us to conceive of the world as a legal community in which all nations and their individual members have their legitimate place’ (pp. 425–6). He makes a very important distinction between norms of jus cogens and the consequences of violations of these norms. Obligations erga omnes do not imply specific consequences and each situation has to be judged by individual states on its merits. Even genocide does not deprive the responsible state of its sovereignty but, for other states, violations of ‘the ban on genocide, as the centrepiece of any adequate legal order among human beings’, can give rise to a variety of consequences including non-recognition and reparation and criminal consequences (pp. 429–33). Tomuschat does not discuss the issue of military intervention in these situations, which is perhaps logical as none of the presenters embarked on this analysis, but it is disappointing that the major issue of whether or not grave violations of human rights can give rise to a responsibility to protect is not canvassed.

But it is by returning to an earlier work by Tomuschat that we find the clearest articulation of the importance of these norms to a model of an international society. In his Hague Academy lecture in 1993 entitled ‘Obligations Arising for States without or against Their Will’, Tomuschat argued that ‘[g]iven the developments triggered by the UN Charter, today a community model of international society would seem to come closer to reality than any time before in history.’Footnote ¹⁵ He went on to say,

This statement would seem to encapsulate the development of a constitutional framework for the international legal community which includes the basic rules which are the norms of jus cogens and obligations erga omnes but which also permit sovereign action.

In support of his thesis Tomuschat argues that there a number of instruments that set out the rules of the international legal order or what he calls ‘the juridical architecture of the international system’. They include Article 2(1) of the UN Charter, which sets out the principle of the sovereign equality of states; Article 38(1) of the Statute of the International Court of Justice, which contains a list of the difference categories of rules of international law including customary law and treaty law; and Article 26 of the Vienna Convention on the Law of Treaties, which declares that every treaty in force is binding on the parties to it and must be performed in good faith.Footnote ¹⁷

Tomuschat gives the example of an unwritten constitution, that of the United Kingdom, as the ‘prime example of a constitution whose relevant components cannot be found in a single document’ but where one can identify ‘certain rules and statutes as forming part and parcel of the substantive constitution’.Footnote ¹⁸ He argues that the UN Charter aims to some extent to become that common law for all states, particularly in its mechanisms for the maintenance of international peace and security, somewhat mirroring the British constitutional model. He concludes that

Thus Tomuschat introduces the concept of an international constitution but one which relies on the establishment of its rules by sovereign states.

Another scholar of note in this area is Bardo Fassbender, who in a recent contribution entitled ‘The Meaning of International Constitutional Law’ continues his long-standing argument that the UN Charter is the constitutional document of international law.Footnote ²⁰ He argues that the principal reason for suggesting that the UN Charter is the constitution of the international community is that it is ‘the one visible document as an authoritative statement of the fundamental rights and responsibilities of the members of the international community and the values to which this community is committed’.Footnote ²¹

International relations scholarship is also debating the nature of the norms of the international community. Nicholas Wheeler, who examines the disputed area of humanitarian intervention in his book Saving Strangers, provides further theoretical justification for an emerging constitution. He argues that states form a society of states constituted by rules of sovereignty, non-intervention, and non-use of force.Footnote ²² He goes on to argue,

Wheeler joins the international law scholars in asserting that states have a responsibility to protect fundamental norms in a society of states. Tomuschat, Fassbender, and Wheeler also introduce us to the second element in this debate, the structure of that international system.

2. The structure of the international constitutional system – regimes and networks

Up to this point international legal scholarship has been limited to general discussions of an international legal community which may or may not be headed by the United Nations. As lawyers generally concern themselves with legal rules, there is very little literature on what the physical architecture of the international legal system might look like. However, two recent publications by Slaughter and Noortmann make a substantial contribution to this debate and to international law literature in imparting their vision of the structure of the international community. First, in his book Enforcing International Law, Noortmann sets out his theoretical framework, which is to examine the relationship between discord and co-operation in regime theory as epitomized by Robert Keohane's After Hegemony.Footnote ²⁴ Noortmann correctly points out that international law scholars find the theory too theoretical or abstract but that ‘it is in the idea of “self-contained regimes” that the relationship between self-help and consensual dispute settlement finds its proper place’ (pp. 6–7).

Noortmann divides his study into three parts.Footnote ²⁵ The first part is devoted to an examination of the phenomenon of self-help in international law and the second part to consensual dispute settlement: a reflection of self-constraint. The purpose of the third part of the book is to demonstrate that self-help and self-constraint merge in normative orders which can be characterized as self-contained regimes. Noortmann's main purpose is to conceptualize regime theory in terms of international law.

For the purposes of examining an international constitution, the most interesting is the third part of the book – Noortmann's discussion of self-contained regimes in international law. He describes regimes not as treaty-based international organizations like the United Nations, but as analytical tools in the assessment between basic causal factors, such as power, interests, and values, and related outcomes and behaviour. This relates to a definition by the political scientist Stephen Krasner of regimes as ‘sets of implicit or explicit principles, norms, rules, and decision making procedures around which actors' expectations converge in a given area of international relations’.Footnote ²⁶ The theory seeks to explain international relations not from power or hegemonic politics but as systematic, institutional, and co-operative relationships (p. 129). This theory is close to another theory of international relations – the English school, which postulates an international society. Hurrell, one of the members of the English school, is quoted by Noortmann as stating that ‘the modern discussion of regimes theory and older ideas about international society have to come to terms with the same essential problem – what is the relationship between law and norms on the one hand and power and interests on the other’.Footnote ²⁷

Noortmann discusses the dichotomy between ‘principles and norms’, which have a political character, and ‘rules and procedures’, which have a legal character. The focus of regime theory on the political factors is one of the weaknesses of the theory. Noortmann acknowledges that this is also a factor in the dispute between the theories of liberalism and realism. He recommends that international lawyers cannot be indifferent to changes in the normative regime and that trying to save a regime by over-regulation could adversely affect the underlying principles and norms (pp. 137–8). This discussion of regime theory is complex, but it is worth struggling through the complexity as this is one of the few international law texts that engages in such a systems analysis. The analysis relies heavily on the work of international relations theorists such as Keohane, Krasner, and Hurrell, but views their ideas through the lens of an international lawyer.Footnote ²⁸ The key argument of Keohane is that states build international regimes in order to promote mutually beneficial interests.Footnote ²⁹ Noortmann extends this theory to argue that international regimes can also promote international law (pp. 140–3).

To support his and Keohane's theory, Noortmann identifies two regimes as being potentially self-contained: the GATT/WTO and the EC regimes. Three features that Noortmann argues must be examined in any regime are (i) the level of integration; (ii) the compulsory and binding dispute settlement mechanism; and (iii) the explicit exclusion or inclusion of self-help as part of the larger enforcement system of the regimes (p. 130). The analysis of the European Union and the World Trade Organization as self-contained regimes reveals exceptional compliance and enforcement mechanisms that are not only part of the rules and procedures but also part of the norms and principles. Resort to self-help would jeopardize the existence of the regime (p. 177).

The conclusion of Noortmann's study is that the institution of self-help is still the primary basis and essential defect of international law. However, he also argues that states do not easily resort to self-help as internal and external factors exist. An absolute unwillingness on the part of states to resolve disputes is very rare (pp. 173–5). In supporting this conclusion, Noortmann has given the above two examples of self-contained regimes that have institutionalized dispute resolution mechanisms. His overall conclusion is that self-help, self-constraint, and self-contained regimes exist side by side in the current international community (p. 178).

Although one might agree or disagree about the degree to which self-help operates in the international legal order, there is no doubt that this book makes a substantial contribution to the debate about the international system, and self-contained regimes illustrate the internationalization of what were domestic spheres of influence. The book also opens up a fruitful vein of analysis for the international legal scholar: regime theory. One could suggest that any research in international constitutionalism should be enhanced by reference to both regime theory and the English school of international relations. Both theories are compatible with, and enhance, international law scholarship.

In contrast to Tomuschat and Thouvenin's collection of articles on jus cogens, and Noortmann's view of self-help and self-contained regimes in international law and relations, Slaughter provides a systematic political and legal analysis of the international system with her unique theory of global governance. She is certainly provocative in her assertion that the operation of global networks is the key feature of world order in the twenty-first century (pp. 1, 166). She defines a global network as a network of government officials working in national security, the global economy, environmental regulation, the judiciary, and even legislatures. It is asserted that these networks constitute a form of global governance with the goal of institutionalizing co-operation and containing conflict sufficiently to allow all nations and their peoples to achieve greater peace, prosperity, stewardship of the earth, and minimum standards of human dignity (pp. 1–4). Slaughter states,

Slaughter's description of these vertical networks has implications for state sovereignty, or what she describes as an international system based on unitary states. Disaggregated states have international activities and obligations within the domestic system itself, not acting simply as a unitary actor negotiating treaties (pp. 11–14). Her opinion seems to accord with twenty-first-century political reality, for Slaughter's idealized world order is achieved in a system of global governance that ‘institutionalizes co-operation’ which would contain conflict and result in peace, prosperity, and securing ‘minimum standards of human dignity’ (p. 15).

The book is organized around the examination, in the first three chapters, of the international connections or, as they are labelled here, governmental networks between regulators, judges, and legislators. In the second half of the book Slaughter continues her long-standing work on the examination of vertical and horizontal governmental networks and how they can contribute to a disaggregated, effective, and just world order. In her introduction she summarizes the points she seeks to establish in these chapters.

• • The state is not the only actor in the international system, but it is still the most important actor.

• • The state is not disappearing, but it is disaggregating into its component institutions with their foreign counterparts across borders.

• • These institutions still represent distinct national or state interests, even as they also recognize common professional identities and substantive experience as judges, regulators, ministers, and legislators.

• • Different states have evolved and will continue to evolve mechanisms for reaggregating the interests of their distinct institutions when necessary. In many circumstances, therefore, states will still interact with one another as unitary actors in more traditional ways.

• • Governmental networks exist alongside, and sometimes within, more traditional international organizations. (p. 18)

Of particular interest to the legal scholar is Slaughter's examination of judicial networks. In this chapter she also proposes a global community of human rights law. She points to the frequent citing of the decisions of the European Court of Human Rights in domestic jurisprudence, and although these decisions have no more than persuasive authority ‘the weight accorded to them out of respect for their legitimacy, care and quality by judges worldwide’ is evidence that judges are ‘engaged in a common enterprise of protecting human rights’ (p. 81). She also discusses the International Criminal Court in her chapter on a disaggregated world order. She argues that the negotiators of the Rome Statute were correct in their use of complementarity, which is a milestone not only for international law but for a disaggregated world order. This is because the concept recognizes national government institutions as a first choice to exercise power and responsibility even in the design of an international system of governance. Second, the ICC will become a stronger and more effective supranational institution due to its relationship with national courts around the world, which will involve defining jurisdictional boundaries, exchanging opinions on substantive law, and mixing international and national legal traditions (pp. 149–50). This argument is important as it makes a case for an international legal order that combines domestic and international legal institutions. World governance, to all of the scholars discussed here, does not have to mean the extinguishing of state sovereignty.

Slaughter also imparts her vision of the role of international organizations in the disaggregated world order. International organizations can be largely facilitative information agencies with the task of collecting, distilling, and disseminating information needed by network participants and helping networks co-ordinate their work. Although these tasks may indeed be part of the tasks of the large network of international organizations, Slaughter fails to assess the impact of the work of these organizations in establishing customary norms for the operation of international law and politics. Her networks are only part of, but perhaps not the total picture of, international society, particularly with relation to the United Nations, which, Fassbender argues, in addition to providing constitutional norms ‘provides the basis for the most important community institutions’.Footnote ³⁰

In her chapter entitled ‘A Just World Order’ Slaughter discusses the problem of how the norms of the international community will fit into her network of global governance. She acknowledges that power without norms is both dangerous and useless and that power must be harnessed through norms. She acknowledges that the international order established by formal international law and international institutions operates according to many norms but that the informal order of global government networks operates without explicit norms. This might affect the accountability of these networks and disadvantage weaker nations. However, in the opinion of this writer, the solutions Slaughter poses to these problems with her international system are not satisfactory. She proposes five norms, which are (i) a norm of global deliberative equality, meaning that all government networks are open to government officials who meet specified criteria; (ii) a norm of legitimate difference – the requirement that in their various deliberations, members of government networks understand and act on the principle that difference does not equal wrong; (iii) positive comity – the substitution of a norm of affirmative co-operation for traditional deference; (iv) the globalization of the US principles of checks and balances, which means guaranteeing continual limitation of power through competition and overlapping jurisdiction; and (v) the principle of subsidiarity, or the location of the government power at the lowest level practicable among local, regional, national, and supranational authorities (p. 259). Although these solutions may lead to the better operation of these informal networks, it is hard to determine how these will contribute to justice in the world order. Surely, an acknowledgement of a sixth norm – the binding nature of the international bill of human rights – as part of the operation of these networks would be critical, since it is part of the language of judicial networks as acknowledged by Slaughter in her discussion of the judiciary.

The succinct conclusion of the book contains a passionate advocacy of this world order based on horizontal and vertical government networks, which according to Slaughter would create a genuine global rule of law without centralized global institutions (p. 261). Sovereign states would retain primary power over public policy but would delegate some power to supranational officials and then work closely with these officials through vertical networks (pp. 262–3). Slaughter then engages in the construction of a model international system which is a networked world of disaggregated states in which national government officials interact with one another on a basis of codes of best practices and agree on co-ordinated solutions to common problems. International agreements would be directly enforced through vertical government networks (p. 263). Part of this system would be premised on a new view of sovereignty moving beyond interdependence and, relying on the definition from Abram and Antonia Chayes, would be ‘the capacity to participate in international institutions of all types – in collective efforts to steer the international system and address global and regional problems together with their national and supranational counterparts’ (p. 267).Footnote ³¹ For international law this would mean that international legal obligations would devolve directly on to government institutions charged with responsibility for the issue area in question (p. 269).

Although this book is an important contribution to the literature on international law and international relations, it fails, except for the discussion on human rights, to tackle the larger theoretical question of the shared principles or rules of this new world order. Physical networks both horizontal and vertical may be critically important in establishing global governance, but based on what belief system? This could have been accomplished by examining the network of treaties that constitute universal values and the values within which the various networks operate and utilize the work of scholars such as Tomuschat and Simma.Footnote ³² Nevertheless, this book is an invaluable contribution to the literature in its thorough examination of vertical and horizontal networks. The detail provided is astonishing and will provide essential reading for both international and European law scholars.

Another book which, like that of Slaughter, combines both international relations and international legal theory is Michael Byers's collection, The Role of Law in International Politics.Footnote ³³ Within this volume is an essay by Slaughter on global networks, a precursor of the book reviewed here.Footnote ³⁴ What is contained in this volume but is missing from the three publications reviewed here is three articles concerning the functioning of the UN Security Council within the international legal system. The Security Council is seen as a political body and is often neglected in discussion of the enforcement of legal norms. The three contributions in Byers by de Brichambaut, Gowlland-Debbas, and Nolte contribute to the debate as to whether the Security Council is a law-creating organ and thus an essential and binding part of the structure of the international system.Footnote ³⁵

The two models of the international system posed by Noortmann and Slaughter are certainly provocative, and they cry out for a response from those who would prefer the Habermas and Tomuschat vision of an international legal order, with its central pillar of shared legal norms. Regime theory and global networks might indeed be part of that model, but what is needed is to compare this vision with a systematic analysis of the structure and functioning of an international system based on the United Nations. Bardo Fassbender, in his book UN Security Council Reform and the Right of Veto, does just that by examining the UN Charter as the constitution of the international community, not just with respect to the articulation of constitutional norms but as a structure for world organization.Footnote ³⁶ However, he is critical of an international constitutional system based on the right of veto of five countries, and he calls for substantial reform of the organization in order that it might assume the task of international governance.Footnote ³⁷ The difficulty with the reform of the veto, and, indeed, with the structure of the Security Council, is that in the ten years since this book was written nothing much has been accomplished in spite of vigorous reform efforts.Footnote ³⁸ There are reasonable concerns about an international constitutional order headed by an organization that is fundamentally undemocratic. However, if one utilizes the regime theory of Noortmann, it can be argued that the United Nations is one, albeit important, part of the international system which is at this point primarily a society of states that co-operate in international governance in a series of self-contained regimes of which the United Nations is one part.

3. International practice

The literature above reflects the continuing trend in the international law community towards a study of international constitutionalism in spite of the crises engendered by the so called ‘war on terror’ and the legally controversial invasion of Iraq. In fact, the practice of states representing the international community constitutes further evidence of the emergence of an international consitutition which is composed of the UN Charter, norms of jus cogens, obligations erga omnes, other key texts including human rights conventions, and a network of the rulings of international tribunals. There is not space enough in this review article to conduct this type of analysis, but various areas for further study can be proposed.

A fruitful area of analysis will be the international and domestic practice that emerges from the application of the Articles on State Responsibility agreed on by the International Law Commission in 2002.Footnote ³⁹ These Articles are not embodied in an international convention, but rather have been recommended to the international community by a General Assembly resolution. Particularly relevant will be Chapter III of the Articles on State Responsibility, entitled ‘Serious breaches of obligations under peremptory norms of general international law’, which introduces the notion of a superior tier of obligations of states, identified as ‘Aggravated State Responsibility’.Footnote ⁴⁰ As with Article 53 of the Vienna Convention on the Law of Treaties, there is no definition of what constitutes a peremptory norm of general international law but there is an acknowledgement that breaches of peremptory norms trigger international responsibility.Footnote ⁴¹ In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, although not specifically referring to the Articles of State Responsibility, the International Court of Justice made a declaration in compliance with these articles, outlining the consequences of a breach of a peremptory norm of public international law:

A second area of fruitful examination will be to follow the development of jurisprudence that will emerge from the International Criminal Court. Quietly and significantly there are a growing number of states parties to the International Criminal Court.Footnote ⁴³ It has embarked on four investigations: the situations in the Democratic Republic of the Congo, Uganda, the Central African Republic, and Darfur, Sudan. The last one might be the most significant in that the United States, which has fundamental disagreement with the court, did not veto the resolution referring the situation to the Court and, instead, abstained.Footnote ⁴⁴ The court is proceeding with indictments for crimes arising out of these situations, and the trials will result in an important discussion of fundamental norms and the obligations of states to co-operate with the enforcement of criminal penalties for violations of these norms. This is a judicial institution of enforcement which unlike the previous ad hoc tribunals could become involved in many more situations of massive violations of human rights.

Finally, there is the issue of the practice of international organizations. In September 2005, at the conclusion of the UN 60th Anniversary Summit, the General Assembly by consensus adopted an important resolution that set out the organization's objectives in a number of important issues ranging from terrorism to fighting poverty.Footnote ⁴⁵ Included in this resolution was a statement that endorsed the Responsibility to Protect. The controversial resolution states,

This idea has its roots in a series of influential studies commissioned in the light of the controversy over the NATO intervention in Kosovo in 1999.Footnote ⁴⁷ In a recent resolution on civilians and armed conflict, the Security Council confirmed the responsibility to protect civilians from genocide, war crimes, ethnic cleansing, and crimes against humanity.Footnote ⁴⁸ Security Council Resolution 1769, which authorized the deployment of a 26,000-strong UN peacekeeping force to Darfur, Sudan, contained in its preamble an endorsement of the previous Resolution 1674 on the protection of civilians. This further resolution could be taken to be a further endorsement by the Security Council of the responsibility to protect.Footnote ⁴⁹ In the recent successful conclusion of the International Conference on the Great Lakes Region peace process there is included a protocol on Non-Aggression and Mutual Defence in the Great Lakes Region which includes this clause:

These three developments represent significant international and state practice (11 African states are members of the Great Lakes process) on this relatively new norm of the responsibility to protect. It could become an important plank of an international constitution requiring a structural framework for implementation. This is further supported by the evolution of peacekeeping into peace-enforcement actions, with several recent operations containing mandates to use force to protect civilians.Footnote ⁵¹ This is assisted by another important result of the 60th Anniversary Summit, the adoption of the recommendations to establish the Peacebuilding Commission, the Peacebuilding Support Office, and the Human Rights Council.

Another fruitful focus of analysis would be to view the practice of the United Nations in new areas as counterterrorism. The establishment of the Counter-Terrorism Committee, which reports to the Security Council pursuant to Resolution 1373, is expecting a great deal of state reporting and compliance with a system of measures of international enforcement in combating terrorism.Footnote ⁵²

All of these developments, unanimously supported by the members of the United Nations, illustrate the movement toward constitutional principles, a set of basic rights and obligations that bind all states. It is, however, the practice of the United Nations and its member states that will point to further support for the development of norms and of the structure of an international constitution. In terms of structures, there is a need to examine the total political and legal structure of the international system, not only from a political-science perspective but to continue the work of international law scholars such as Noortmann and Slaughter.