Legal character of the constituent treaty
in The law of international organisations (third edition)
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This chapter discusses what makes the constituent treaty of the United Nations (UN) and similar inter-governmental organisations different from many other treaties so that it is appropriate to use the term constitution in relation to such treaties, although the legitimacy and strength of such constitutions varies. In a minimal sense, the UN Charter constitutes, or establishes, an organisation with organs possessing legal powers and members with rights and duties, justifying the use of the term 'constitution'. The chapter also discusses the constitutional features of the UN Charter, including the debates surrounding the so-called 'supremacy clause' of the UN Charter contained in Article 103. It presents two case studies featuring judicial decisions on the primacy of UN obligations by the International Court of Justice in the Lockerbie cases of 1992 and 1998, and the European Court of Human Rights in the Al-Jedda case of 2011, to illustrate the controversies surrounding constitutionalism.


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