International Constitutional Law: Written or Unwritten?

Abstract

Today, concepts of constitutionalism are widely used in international legal scholarship, both to describe and to promote changes in the international legal order in support of the rule of law, the protection of human rights and other common values of the international community. Against this background, the present article deals with a question so far addressed only cursorily—the “writtenness” of international constitutional law. Can we assume the existence of an “unwritten” international constitution, or does the very concept of a constitution in the modern sense require that a constitution is laid down in written form? The article discusses the importance of “writtenness” in modern constitutionalism and addresses the “English exception”, that is the absence, in the United Kingdom, of a document called “the constitution”. The paper concludes with a plea for taking the constitutional character of the UN Charter more seriously, arguing that the idea of an unwritten constitution of the international community does not provide a viable alternative.