Towards a World Constitution

A World Constitution
Carmo D'Souza ( M.Sc., B.Ed., LL.M, Ph.D.(Laws))
· This article is intended for circulation in order to motivate an academic debate on the need for a World Constitution.
· I am greatly indebted to my brother, Dr. Anthony D’Souza (M.A., LL.M., Ph.D.(Laws) ) for reviewing this article and for his precious inputs and suggestions.

INTRODUCTION
11 September 2001, and the twin towers came crumbling down. The impact caused tremors in the established world system. The very foundations on which a section of civilization had postulated its existence were for the first time challenged. In a hurried bid that world tried to regroup itself in order to work out its social security. That was an opportunity for the world legal regime to rise itself from the ashes. Unfortunately, it was a lost opportunity. The international legal regime was found lacking in legal concepts, doctrines and suitable international institutions that could provide solutions . There was not even sufficient legal material developed by scholars that could crystallize into suitable approach for resolution of problem. Bereft of ideas, it was left to President Bush to chart out his own course based on state sovereignty and hurt national indignity. International law lost an opportunity to strengthen its foundations.
The world accepted the concept of war against terrorism. The term ‘war’ against terrorism while it emphasizes the urgency of the situation, demonstrates on the other hand, the weakness of the legal system or better the lack of a legal regime to fight terrorism. The word ‘war’ indicates something of last resort. Though ‘war’ here signifies urgency, yet the term represents a position of reaching the end of a rope, an option of last resort.
Several questions can be raised about the soundness of such wars against terrorism. Should a world legal regime permit it? Can’t it create dangerous precedents for the future? The US threat to fight it alone, couldn’t it result into several other complications? Hasn’t the world community a duty to protect a victim of terror, if there is really injustice? What would be the consequences if a weaker political power was the target of terrorism?
Afghanistan has been the tip of the iceberg. President Bush has indicated his determination to carry the war further into several other countries. Questions have been raised about the soundness of such steps on the international scenario. Labeled as US unilateralism, the big question is, whether such a step can be a solution to the problem or will it turn out to be in the long run another problem itself?
The tragedy of 11 September 2001 was a serious one and such situations are bound to repeat, whenever there is a sabotage of the systems on which the world community puts its trust. It may be the in the crash of planes on the twin towers, it may be in the hijacking at Khandhahar, or it may be in posting the anthrax letters. The methods possible are numerous as human mind is ingenious. Such sabotages, with international repercussions have to be dealt by the international regime, a regime that will grow as circumstances develop. The world gropes in waited breath for an answer. Could a well-drafted World Constitution fill up the lacuna in international law?

A World Constitution
The events of 11 September point towards the need for a World Constitution. It is necessary to start building up the concepts for a new world legal regime on the debris of the twin towers. The momentary opportunity was lost, soon after the collapse of the towers, as the world staggered without any ideas to counter the threat. However, it is not late for legal scholars to pick up the threads and start building the framework for a World Constitution.

Objectives
The objective of the article is to motivate a debate on the possibility of a World Constitution. It is not expected here to attempt either to suggest the model or to discuss in detail the legal material needed to the development of a World Constitution. However, certain tentative propositions are made here and they are meant mostly to generate debate. This article aims at building consciousness towards the need for a World Constitution in the near future. In order to build up a model, a more serious exercise is needed on the part of legal experts, who are in the know how of international law and politics. This article will have served its purpose, if it can motivate a debate in that direction.

Need of Concepts
There appeared to be lack of concepts in jurisprudence to tackle the problems posed by the terrorist activities especially as demonstrated by the events of 11 September. Hence it is necessary to begin with proper concepts for the development of a World Constitution. Legal history is a witness where improper concepts have resulted in unjust and oppressive regimes. Sometimes even good intentioned legislation, which was based on improper concepts, resulted in harsh measures [1] . Concepts while in one side facilitate thought processes during a period; on the other hand sometimes they imprison thought in an outdated time frame, and hence need to be liberalized. Hence though concepts are necessary, their proper review too is vital for the well being of society. For instance, it is necessary that legal scholars start building proper concepts that will liberalize thought processes of old time frame of national sovereignty to make it relevant to the modern world. If proper concepts are built, then it will be easy to make a World Constitution an acceptable reality to the community of nations.

Content
The present article is divided into the following five parts:
A) Preliminary Notions.
B) Preliminary Questions.
C) Advantages of a World Constitution
D) Stages for a World Constitution.
E) Concluding Remarks.


(A) PRELIMINARY NOTIONS
Before making a case for a World Constitution, it is decided to discuss here certain important concepts, notions, and institutions, required for a proper analysis of the subject. The material under this section is grouped under the following headings: (a) Concept of Sovereignty, (b) Social Contract Theory, (c) The Rule of Law, (d) Concept of War, (e) Constitutional Law, (f) International Law, (g) United Nations, and (h) Opinions of Prominent People on the New World Order.

Concept of Sovereignty
A proper understanding of the concept of sovereignty is very important today in order to permit the proper growth of internationalism in view of globalization . Over the years the concept of sovereignty has been very useful especially in building nationalism over the narrow parochial interests that existed in the earlier society. However, today it is necessary to carry out a proper jurisprudential study of the concept, in the light of new global pressures. As the concept of sovereignty served the development of nationalism, continued over use of it without due modifications, may be detrimental to the growth of internationalism.
The old idea of national sovereignty is in practice a myth today. De facto countries accept sovereignty in a very diluted form. There are so many global pressures, that a diluted sovereignty under the rule of law may be more meaningful and substantial than the old idea of unhampered sovereignty, which may be meaningless. So it is necessary that legal scholars remould the concept of sovereignty, so that it does not become a barrier to development of internationalism. Rather, such a new approach may make national sovereignty more meaningful in the real sense. For instance, the question that may be posed is whether the consent of a nation is necessary to force down a law on it, irrespective of its sovereign status, when such requirement is demanded by justice and is for the benefit of the world community as a whole. Should the municipal law always prevail over international law, irrespective of the threat it may pose to the world security merely on the ground of state’s sovereignty? It may be argued that the proposition that national law which is detrimental to the world community, should not prevail against international law will in fact enhance the concept of national sovereignties in the long run.
The concept of national sovereignty needs a re-look in the fast developing world situation. In order to understand better the issues involved in sovereignty, it is decided to present here, first the Hegelian concept of absolute and unrestrained sovereignty, followed by a jurisprudential analysis of the two aspects of internal and external sovereignty, to a conclusion of how external sovereignty is limited either positively by desire for peace, or negatively out of fear of other states. Then reference is made to the ever increasing interdependence of nations in the modern world, with a comment from Sydney Bailey that though nations treasure sovereignty, they were and are not wholly sovereign. The presentation is based on quotes, taken from authoritative text books on law.
· Hegel on Sovereignty - “Hegel believed that the sovereignty of individual states in the conduct of their foreign affairs was absolute and unrestrained. Disputes between states not susceptible of being settled by mutual agreement could be decided only by war, an institution which Hegel regarded at the same time as necessary and beneficial for the preservation of the internal health and vigor of the nation.” [2]
While we can understand the reasons for Hegel’s concept on sovereignty being suitable for his times , one can easily concluded that such concept has served its usefulness and is no longer relevant in the present context. Such approach today is detrimental to the growth of internationalism.
· Internal and External Sovereignty : “… And we have seen earlier, sovereignty has two aspects, internal and external. We have defined internal sovereignty as the supremacy of a person or body of persons in the state over the individuals or associations of individuals within the area of its jurisdiction, and external sovereignty as the absolute independence of one state as a whole with reference to all other states.” [3]
Is external sovereignty in terms of absolute independence of one state as a whole with reference to all other states in the present market economy a myth ?
· Is External Sovereignty in practice limited? - “External, like internal, sovereignty is in theory unlimited , but in practice it is limited either positively by a desire for peace or some material advantage on the part of the community concerned , or negatively by a fear of the power of some neighboring state to crush that community. Either of these considerations may lead a state into an association with others more or less real according to its conditions. The simplest form of such an association is an alliance, which may be either defensive- i.e. to give the association armed effect if any of its members are attacked – or offensive –i.e. to arm the association even though one of its members is the aggressor. Now, this is not a formal limitation of sovereignty, since any member of such an association is free to withdraw from its conditions whenever it feels inclined, even though the conditions of the alliance may lay down limits of time. A good example of this was seen when Italy withdrew from the Triple Alliance with Germany and Austria at the outbreak of war in 1914, and in the following year allied herself with the enemies of her former allies, a volte-face which she repeated in 1943.” [4]
Here is a reference to sovereignty being in theory unlimited but in practice limited. Should sovereignty in theory be really unlimited? Does it serve any purpose ? Should modern jurisprudence be concerned with redefining if necessary the theoretical aspect of external sovereignty?
· Interdependence of nations – “The ever-increasing interdependence of nations in the world today is most marked in the economic sphere. No modern civilized community can be entirely self-sufficient, and, however strictly a state may organize and control its internal economy, it cannot ignore the interaction of world economic forces. The extent to which any state can approach self –sufficiency must, of course, depend primarily on its size and natural resources, and on its political stability.” [5]
With economic interdependence of nations becoming so real in this global world, the question raised is whether the concept of sovereignty has to be redefined in the light of the new economic regimes exerting global pressures on individual nations.
· Nations are not wholly sovereign -“Nations treasure the concept of sovereignty as much as ever they did, yet nations never were, and are not now, wholly sovereign.” [6]
So, is it not necessary to check the usefulness of the concept of sovereignty in the light of above statement and keeping in mind the present global situation?

Social Contract Theory
Social Contract theory is very significant to understand how the municipal law of a state, irrespective of his choice and desires, can bind an individual. One wonders whether such an argument can be extended to the international scenario. For instance, can one postulate that countries, irrespective of their choices are bound by at least certain minimum provisions of international law necessary for survival of mankind ? Here authoritative extracts have been collected, first to bring out the social contract theory, then the doctrine of conditional surrender of rights and how contract secures equality. Lastly the views of Hobbes, Locke and Rousseau on the subject are highlighted.
· Conditional surrender of Rights - “Briefly stated, the Contract Theory argues that the state is born in a compact among a number of men who come together to end an intolerable state of nature. By the compact men abandon certain of their natural rights, but only those necessary to the establishment of a civil condition of society. The object of political society is, therefore, to secure that the rights not so abandoned continue to be guaranteed to the citizens. If the establishment of government is contractual, it follows that when government becomes tyrannical it breaks the contract, and therefore the members of the state have the right to remove such a government.” [7]
The Contract Theory was necessary to build the power of the State, while the conditional surrender clause took care of the society against the abuse by the state . Isn’t such a situation that happened earlier at the national level, developing on the global scenario? Hasn’t the international community got the right to force an erring state to respect the rights of the world community? Can one not refer to the conditional surrender of rights clause?
· Contract and Equality - “The contract secured equality, since thereby each, in giving himself up to all, gave himself up to no one.” [8]
If nations surrender their rights in line with the individuals will it not secure equality among nations?
· Hobbes’ View - “ In order to secure peace and to enforce the law of nature, Hobbes argued, it is necessary for men to enter into a compact mutually among themselves by which everyone agrees to transfer all his power and strength upon one man, or upon an assembly of men, on condition that everybody else does the same. The sovereign power thus constituted, called “Leviathan” or the “Mortal God” by Hobbes, should use the combined power and strength of the citizens for the purpose of promoting the peace , safety, and convenience of all.” [9]
Is there a need for some kind of Mortal God today at international level?
· Locke’s view - “ In contrast to Hobbes, who constructed the social contract as a pact of complete subjection to an absolute sovereign, Locke asserted that men in establishing a political authority retain those natural rights of life, liberty , and property ( often grouped by Locke under the single concept of property ) which were their own in the pre-political stage . “The law of nature,” said Locke, “ stands as an eternal rule to all men, legislators as well as others.” Only the right to enforce the law of nature was given up to the organs of the body politic.” [10]
Is the same principle applicable in a modified form to international relations? Can a just World Constitution play the role of the law of nature?
· Rousseau on Social Contract – “ Each man”, he said , “ in giving himself to all, gives himself to nobody ; and as there is no associate over whom he does not acquire the same right as he yields others over himself , he gains an equivalent for everything he loses, and an increase of force for the preservation of what he has.” [11]
Won’t the same principle apply to nations in the international field?

The Rule of Law
The rule of law is an essential component in the drafting of a World Constitution. Hence it is decided to present here some authoritative extracts on the rule of law, so that the reader can draw his own conclusions. To begin with the extracts deal with the definition of the term rule of law and the meaning of rechatsstaat , and then concern with the ideals and substance of the rule of law.
Extracts on politics, concern with the primacy of the rule of law over politics and limitations of politics so as not to infringe the law. A point is made how the rule of law forms the basis for a political order. Also highlighted is the present day concern on how the rule of law may have to protect citizens against the new ruler i.e. the Parliament, and the important role of rule of law in assuring Fundamental Rights. The last quote refers to the role of the rule of law in international relations specially in view of new global economic order.
· Rule of law -:Josef Thesing refers to a baseline definition of the rule of law. He writes: “ Its fundamental elements are marked out even more clearly by Klaus Stern: ‘Under the rule of law, the State exercises its power on the basis of laws adopted in a constitutional procedure so as to safeguard freedom, justice, and the certainty of the law’.” [12]
· Rechatsstaat – “A ‘Rechatsstaat’, a democratic State under the rule of law, is controlled and restricted by the law in all its activities, the most important point being to restrain governmental authority so as to protect the freedom of the individual. Accordingly, a ‘ Rechtsstaat’ is a State embedded in the law and legitimised by the law.” [13]
Can a well-drafted just World Constitution provide for the constitutional procedure so as to safeguard justice and the certainty of law at international level?
· Ideals behind the rule of law - “The rule of Law , as it evolved in national societies, was based on two ideals. First, that executive power should be derived from and exercised in accordance with law. Secondly, that law itself should respect the supreme dignity and worth of the human person.” [14]
Reference is made to the evolution of the rule of law in national societies. Isn’t it possible to say the same thing about the rule of law with respect to international relationships in view of the global trends today?
· Substance of the Rule of Law -The substance of the rule of law is explained by Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’. He writes: ‘From time immemorial, the term ‘rule of law’ has described a collective of different and diversified principles which, to cap it all, is in a state of continuous dynamic development. If we scan the issues which are currently being debated, the catalogue of good principles that emerges is quite substantial .It includes the postulate that the applicability of any law should be predicted on its universality and publicity, and that any governmental action of importance must be enabled by Act of Parliament.’ [15]
Can we refer to catalogue of good principles on the international scenario? Can a World Constitution provide some basis for making applicability of law more predictable at international level?
· Primacy of Rule of law over Politics- A important element of the rule of law is that it enjoys primacy over politics. Gerhard Robbers writes: ‘ At an even higher level of abstraction we find the fundamental postulate of the rule of law, which says that the law enjoys primacy over politics. Politicians wishing to implement what is politically desirable must remain within the confines of the law, even though this may prove uncomfortable at times. The meaning of this is not that politics should be superseded by the law; such a development would be disastrous, and indeed it has at times progressed too far in real life.’ [16]
· Limitations of politics -‘What the primacy of the law as the fundamental postulate of the constitutional state really implies is that those who struggle over political issues should uphold and not infringe the law. Politicians are at liberty to change the law by the processes which, in turn, are laid down in the law itself; but this is all they can do.’ [17]
Can international politics remain ungovernable? Hasn’t the rule of law to have primacy over international politics? Can a World Constitution or a similar document with components of justice in it, make the rule of law more meaningful at international level?
· Rule of law as basis of political order -The rule of law is required as the basis of political order . Whenever the rule of law forms the basis of a political order , it ‘ teaches people to settle any conflicts about values or interest in conformance with legal rules and without resorting to violence. What is more, domestic peace leads to peaceful foreign relations. Currently, however , the practice of violating human rights in general and minority rights in particular has caused and is still causing all those horrible civil wars we are now witnessing, with all the consequent misery and distress suffered by masses of refugees.’ [18]
Does this not apply to the international field? Can a World Constitution bring down violations of human rights? What can secure better minority rights than a well drafted World Constitution with components of fairness and justice?
· Rule of law and Parliament - “ For the time being , the rule of law had fulfilled its prime purpose of protecting citizens against the power of the executive , thus removing the odor of submission. There was no one at the time who would have imagined that safeguards might be required to protect people against the new ruler- Parliament.” [19]
It is to be noted that safeguards against Parliament may be the new problem to be tackled. It is not sufficient that a Constitution drawn by a representative Parliament is the ideal piece. One has to take care that the Constitution takes into consideration the elements of justice. So could a World Constitution provide those safeguards ?
· The Rule of Law and Fundamental Rights - As per Gerard Robbers ‘First and foremost among the substantive elements of the rule of law is the assurance of fundamental rights . Freedom and equality , the dignity of man , and its various manifestations in the form of guaranteed human rights constitute traditional characteristic elements of the rule of law.’ [20] And further he writes, “ Within the confines of the rule of law, the meaning of law is quite different. Primarily, it comprises a set of rules without which peaceful existence in freedom would be impossible . It provides institutions that promote self-fulfillment……To furnish those structures that enable people to live together peacefully and, by the same token, underpin the outward freedom of the individual is the essential principle of the rule of law and, by closer analysis , the essence of the law itself.” [21]
Can a World Constitution be the best document to secure gradually in the world Fundamental Rights ? Constitutional experience in many countries of the world has shown the growth of Fundamental Rights.
· Rule of law in international relations - “The Rule of Law in international relations is usually taken to mean simply ‘the observance by States of international law as it exits today’. This, to be sure , is not an onerous obligation; but the ultimate goal must be that relations among States should be governed by accepted rules of conduct, that controversies should be submitted to judicial tribunals for settlement , and that means of enforcing judicial decisions should be devised. This would require that what constitutes ‘the law’ should be known with reasonable certainty and applied without discrimination. Judicial tribunals should act impartially and with complete independence. They should ascertain the facts by means of evidence presented by the parties, and should hear legal arguments on question of law. Their decisions should dispose of the matter by a finding upon facts in dispute and an application of law to the facts found, including when necessary a ruling upon any disputed question of law; and the parties should agree to accept and comply with the decision of such a tribunal.” [22]
The question is what can provide the accepted rules of conduct mentioned above and the judicial tribunal for the settlement of controversies? Can a well-drafted World Constitution, based on principles of justice and fair play provide the answer?
· Rule of Law and Economic Reforms - Josef Thesing in his book ‘The Rule of Law’ argues that the process of transformation and economic liberalization may be accompanied by increasing delinquency and spreading corruption, deficiencies in the system of law and order, which will lead to general loss of confidence in the process of democratization, the market economy and even the state itself. Therefore he further argues that the ‘ success of political and economic reforms decisively depends on the proper functioning of the rule of law.’ [23]
Can a World Constitution aid the rule of law to prevent such a chaotic process ?

Concept of War
War is recognized and accepted in international field though under certain restrictions . The concept of war have changed with the times. For instance, conquest was a recognized result of war that lead to a legal right to the territory. History often glorified great warriors and conquerors. At times war was accepted irrespective of the element of justice in it. Fortunately scholars during a particular period explored the concept of a just war and built jurisprudence round it. However, the concept of a just war too changed with the times and place. At times religious motives, resistance to missionary activities, etc. where sufficient reasons to justify a war. Today perhaps self-defence is one strong component in a just war. However even in the case of a war of self-defence, there are too many components that have to be taken into account, and one may not accept it as a blank cheque.
The traditional way of looking at war as conflict between powers is fast fading today . Mass media frequently projects other elements in war which were hidden earlier, such as the human suffering, victims of war, refugees ,etc. As was noticed in Afghanistan, this element was gaining priority as the war advanced. Hence it is necessary to have a re-look at the concept of war in the light of new developments.
Extracts presented in this part refer first to Kelsen’s reference to war as being sanctions in international law, then to the role of law in promotion of peace or controlling aggression, and to the question whether it is possible to banish war. Also there are extracts on whether the war instinct is genetic, on the possibility of destructive wars in future and on whether war is justified in the modern scenario.
· War as sanction ? “Kelsen lays down repeatedly that the sanctions of International Law are two kinds of force - war and reprisals. This is a remarkable conclusion. War, as known to International Law , is in no sense a sanction in the true legal sense. Although much has been written about the ‘just war’, this is essentially a moral , political , or ‘metajuristic’ conception . International Law is not concerned, except incidentally, with the causes of war , and its ‘laws of war’ are rules which are intended only to regulate a conflict existing de facto , but which have nothing to say to war de jure . Indeed , we may go farther: in the present state of the world , war, an instrument of national or political will, has only a de facto existence and is not a juristic phenomenon at all. It cannot be a sanction, for a legal sanction ( at all events, the sanction of force) must always be imposed by a superior and acknowledged authority – which does not at present exist in the international community. It was hoped by many that the League of Nations and the United Nations might develop into such an authority , but recent history has not fortified the hope. Kelsen , however , evades the difficulty by assimilating war and reprisals to the self–help of primitive communities….” [24]
Can a World Constitution at least provide some basis to find when a war is unjust ?Can war in the modern world continue as a non juristic phenomena?
· Law and promotion of peace or control of aggression: - “In the domestic affairs of nations, as well as in the international arena, law has aimed at serving as an institutional device for substituting aggressive force by peaceful forms of human relations. The past history of mankind demonstrates clearly that thus far the law has been more successful in curbing fighting within organized groups than in controlling warfare between such groups.” [25]
Is it a fact that greater stress was laid in the past on promotion of internal state order, with jurisprudence too evolving suitable concepts than on international order and peace? Could it be a fact that in the past mankind did not face so many problems when an international destructive forces could disrupt internal order of so many countries, such as posting of deadly poisonous substances by a terrorist group? Is it necessary to evolve new jurisprudence to face such problems?
· Banishing of war ?- Bodenheimer writes: “ In a world threatened with atomic destruction , this deficiency in the rule must be a cause for grave concern . In the words of Ranyard West, “ the trouble of modern society springs less from the individual self –assertiveness of its individual members than from its failure to master collective aggressiveness .” At this juncture of history, it is a matter of speculation whether a remedy for banishing international war will be found in the future. Some distinguished students of human nature have expressed considerable doubt regarding the possibilities for a satisfactory solution. Sigmund Freud, for example, was convinced – at least in the later periods of his life – that the sociable and creative impulses of human beings are fully matched and counteracted by a negative force, the “death instinct,” which finds one of is outlets in the human desire for aggression and destruction. This powerful drive, Freud believed, stands in the way of an abolition of war. He expressed some hope, however, that the progress of culture and “ the justified dread of the consequences of a future war” might result within a measurable time in putting an end to the wagging of war. More recently, the German ethologist Konrad Lorenz came to the conclusion that “intraspecific fighting” is common to animals and men, but like Freud he did not rule out the possibility of devising some effective controls on man’s bellicose impulses .” [26]
The fact that human nature by itself may or may not work for abolition of war is a scaring problem. Hence it is more important then, to control such impulses by the rule of law which can attempt at abolition or regulation of war.
· Instinct of warfare –is it genetic? – ‘Bronislaw Malinowski addressed himself specifically to the question whether the instinct of warfare was implanted in the human genetic system. He answered this question in the negative. “ Human beings fight, not because they are biologically impelled, but because they are culturally induced…War is not the original or natural state of mankind.” If war came from an innate biological urge, he said, it would most certainly occur at the earliest stages of anthropological development , where these inclinations manifest themselves in their most direct and uninhibited way. War does not, however, exist among the most primitive groups. Later, when intertribal fighting makes its appearance , it is only an occasional affair and remains on a small scale. Such wars may break out when one organized group feels threatened in its interest and security as a collective unit by the actual or anticipated interference of other units. Hunger may also drive an aggregation of human beings to the warpath. Fighting in these cases does not take place for its own sake, but under the impulses of fear, anger, or desperation. While wars of conquest occur at later stages of development , they are, in Malinowski’s opinion, conducted because they are economically and politically profitable and not because human beings are driven into them inexorably by a supposed “animal of prey” constitution of human nature.’ [27]
From Malinowski’s analysis one can conclude that instinct of warfare was not implanted in the human genetic system. His explanation of wars of conquests is interesting for a jurisprudential analysis. One can find out the role played by legal concepts in sustaining war as a means of conquest, vassalage, colonization and so on. Once the role of law in building up these concepts is detected, one can attempt in constructive remoulding of concepts to suit the present global world.
· Possibility of Destructive civil wars - “The course of future history will provide the final answer to this perplexing question. Even if a unification of the globe should some day be achieved, this would not exclude the possibility of destructive civil wars waged between some constituent units of a world state. We cannot be entirely sure whether there will not always be a sufficient number of strong-willed, power-hungry leaders able to capture the militant instincts of men and thus to render permanent peace a utopian dream.” [28]
Hence it becomes imperative that one deals with the problem of war jurisprudentially. It is necessary to analyze thoroughly the concept of war.
· Wars today – Are they justified? -“Can wars waged for national or ideological aims be justified in the atomic age when we balance the wholesale destruction and loss of life likely to be caused by them against the consequences of a radical renunciation of the use of force? .” [29]
As demonstrated in Afghanistan in future all the dimensions of war will be projected by the media and hence one will have to take account of multiple consequences of war.
· War - an extra legal phenomena? – “Destruction of life in times of war has, of course, occurred on a large scale in civilized as well as less civilized cultures. We have to keep in mind, however, that the natural-law doctrine is concerned with certain essential contents of intragroup legal systems, while war - in spite of certain attempts to regulate some of its rigors – is basically an extralegal phenomenon.” [30]
Can war continue to be an extra-legal phenomenon? Isn’t it necessary for warfare too to be governed by certain constitutional principles, which embody to certain extent the natural law doctrine of justice and fairness?

Constitutional Law
It is decided to present here some views on Constitutional Law and its evolution, which may serve for better understanding of the present subject. The texts have been grouped under three subheadings: (a) Definition of Constitution and its historical perspective, (b) Extra- legal origin of Constitution and (c) Classifications of Constitution.

(a) Definition and Historical Overview.
The definitions of constitution presented are from Strong and Salmond. A historical constitutional journey is taken from the ancient world, through the Imperium Romanum , to the modern development of constitutionalism and finally to the brand of constitutionalism under the League of Nations.
· Strong’s Definition of Constitution –Strong writes: “James Bryce defined a constitution as ‘ a frame of political society , organized through and by law , that is to say one in which law has established permanent institutions with recognized functions and definite rights’. Again, a constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed , and the relations between the two are adjusted. The constitution may be a deliberate creation on paper; it may be found in one document which itself is altered or amended as time and growth demand; or it may be a bundle of separate laws given special authority as the laws of the constitution.” [31]
It is to be noted that a Constitution as per the above may not be a single document but a bundle of laws .It could evolve gradually. Another significant point is that it could be a deliberate creation on paper.
· Further Strong says ‘We have defined a constitution as a frame of political society organized through and by law, in which law has established permanent institutions with recognized functions and definite rights, and a constitutional state as one in which the powers of the government, the rights of the governed and the relations between the two are adjusted.” [32]
A question that may be posed here is whether in this twenty first century the international community does not require to be organized through and by law.
· Salmond’s definition of Constitutional Law - Salmond defines it as “ the body of those legal principles which determine the constitution of a state –which determine, that is to say, the essential and fundamental portions of the State’s organization.” [33]
It is to be noted that strictly speaking a World Constitution will not fit into the definition of constitution. First of all it is not possible to conceive so far, the world as a state. Besides one cannot expect the organs as we understand them to develop fast but may take a long time to evolve. Yet it may be advisable to extend the concept of constitution to this document due to several advantages. This point is discussed at a later stage.
· Constitutionalism in the Ancient World - Strong in his Modern Political Constitutions writes, “ The national constitutional state could not have grown in the soil of the Ancient World. Nationalism as a practical political programme has developed within the mould of the state as it emerged in Europe in the fifteenth century. For the modern states–system of Europe began with that great era of change which we call Renaissance. The significance of that series of revolutions in the spheres of letters, arts, science, maritime activity and politics, is best apprehended by studying what happened at that time to the state.” [34]
The significant point is whether the modern global situation in the twentieth century calls for another kind of Constitutionalism outside the mould of the state.
· Constitutionalism in Rome –Strong writes: ‘The constitution of Rome was at first a quite determinate instrument of government , and yet nowhere could it be found stated in so many words. Like Britain’s , it was made up of ‘a mass of precedents, carried in men’s memories or recorded in writing, of dicta of lawyers or statesmen, of customs, usages, understandings and beliefs bearing upon the methods of government, together with a certain number of statues.’ [35]
It is clear that constitutionalism evolved and was not organized with all the three organs as of today. Similarly, we may be at a point today where international constitutionalism is at the evolution stage without having all the elements bearing on methods of government at international level.
· Imperium Romanum- “Among the sociological reasons which may perhaps explain why the Stoic philosophy fell on such fertile soil in Rome must be counted the trend toward a universal empire, which was very marked in the last period of antiquity and which led to the creation of the Imperium Romanum . The Stoic concept of a world-state with a common citizenship and a common law, based on natural reason, acquired a very real and nonutopian meaning under these circumstances. With the granting of citizenship rights to most of the Roman provincial subjects in 212 A.D., the idea of a community of civilized mankind ( civitas maxima ), as opposed to the parochialism of the small city-states of earlier periods, had found an approximate realization .It was no wonder that under these conditions the philosophical concepts of Stoicism, which found additional support in the rise and spreading of Christian ideas, had a significant impact on the political and legal developments of the Roman Empire. ” [36]
Isn’t it surprising that we may have to rethink of the ideas on a world-state, common citizenship and a minimum common law that is based on natural reason again today. The component of natural reason could be possibly approached through a just document like a well-drafted World Constitution. Merely a document that may be produced by legislative majority may not meet the requirements of justice.
· Modern Constitutionalism -As regards Modern constitutionalism, it has developed from the two-fold basis of nationalism and representative democracy. [37]
So one can argue that the threat to nationalism from overemphasis on individual nations to the detriment of the rest can be the basis for international constitutionalism. However one may not be able to overemphasize the element of representative democracy for a world constitutionalism at this stage. Rather the emphases should be on fairness and justice. Also one can argue that twenty first century constitutionalism must develop on the basis of internationalism.
· Constitutionalism and nationalism - “ And this constitutionalism was always moulded either on the British model or on the variant form of it adopted by the United States . That is to say, it established representative institutions and made the nation the basis of state. Where a nation could not be said to exist , as in China , the constitutional trend nurtured the growth of nationalism and used it as a political platform.” [38]
Constitutionalism within state has emerged with nation as the base. In China constitutional trend nurtured in growth of nationalism. Cannot a World Constitution today nurture the trend on internationalism? How far representative institutions have to play a role in a World Constitution can be discussed separately as there in no need to use either the British or U S model or their variants.
· Political constitutionalism, nationalism and representative democracy – “ Yet, far as it had gone in Europe , political constitutionalism had in most cases still farther to go in the matter of representative democracy and nationalism.” [39]
Can Nationalism imply only one type of people without taking the minorities? Can we emphasize today merely on representative democracy? It may be advisable to keep the element of representative democracy in a World Constitution at a later stage of its development due to several complexities that may arise initially.
· Constitutionalism and League of Nations -“A yet further development of constitutionalism resulted from the First World War in the establishment of the League of Nations. The signing of the Covenant of the League was made inseparable from a signature of the Treaties. Here for the first time in history was an organization of many states under a definitely constituted body of rules and set of organs. The League was at once empirical and experimental, founded , as far as the parallel could hold, on the constitutional practice of the states forming it, and permitting by its form expansion and amendment as experience might demand and circumstances allow. We call it constitutional experiment , not because it was an independent body with sovereign powers ( for that it certainly was not), but because it aimed, by constitutional means, at preventing or peacefully settling conflicts between the sovereign bodies which were its members, and was, therefore, in line with that constitutional progress which had up to then been achieved in most Western states.” [40]
If the development of the League of Nations can be termed as Constitutionalism, will it not be appropriate to name a document, which attempts to regulate at least basic international relationships as constitutionalism? Can’t one expect Constitutionalism to grow from such a document?

(b) Extra-Legal Origin of Constitution
Here extracts highlight Salmond’s opinion on extra-legal origin of constitution ,with an example of how the Bill of Rights was passed by an unrepresentative parliament. Also it discusses whether authority of constitution could be from the legal system itself to the conclusion that fundamental rules of such a constitution qualify as legal rules.
· Extra legal origin of constitution -Salmond is of the opinion that every Constitution has an extra legal origin apart from cases such as where the mother country on grant of independence to a colony enacts a constitution to the new state, or the existing constitution in a state allows for its replacement by a new constitution. He points out the extra legal origin of the U S constitution .In fact the origin was not merely extra-legal but it was illegal. He also questions the legal authority for passing the Bill of Rights. Yet he concludes that the Bill of Rights was now good Law. [41]
If this is so there is not much difficulty in accepting that a World Constitution too can have an extra legal origin.
· Bill of Rights passed by unrepresentative parliament - “This, in fact, was the work of an oligarchy whose opposition to James II issued in the Bill of Rights , a statute passed by an utterly unrepresentative Parliament whose basic constitution had not been materially reformed since its foundation in 1295.” [42]
So is it necessary for a World Constitution to be passed by a representative body?
· Authority of constitution – is it from the legal system itself? - ‘How, it may be asked, can the constitution of a state be determined by law at all? For constitutional law includes amongst other things the basic rules of recognition of a state’s legal system. As we have seen, these cannot derive their authority from the legal system itself’ [43]
Does a World Constitution have to be necessarily a product of an international convention? And if it is a product of an international convention, can’t it have an authority greater than the convention, if it is accepted as a Constitution?
· Constitution of extra –legal origin and its fundamental legal rules – ‘But the fact that constitutions of extra-legal origin are not determined by pre-existing law does not prevent the fundamental rules of such constitutions from qualifying as legal rules. Applying the analysis of the concept of “rules” discussed earlier, according to which the existence of a rule consists of the external observance of a usage coupled with an internal respect for the usage as being obligatory , we can see that these criteria could apply to the rules of recognition in a legal system and to the constitution which incorporates them . From ordinary legal rules, however, they differ in one important respect : their authority cannot logically be derived from some more basic legal rule, because they are themselves the basic rules of the legal system. For suppose the constitutional provisions regarding the authority of the legislature were to be enacted by legislation. What would this add? If the legislature has no legal authority , the enactment is void. If it has legal authority , then the enactment is valid but it owes its authority , not to itself , but to the already existing rule conferring authority on the legislature.’ [44]
In a similar manner one can argue that a World Constitution though it may have an extra-legal origin, it does not prevent its fundamental rules from qualifying as legal rules.

(c) Classification of Constitution
Under this sub-title, texts are presented to bring out the basis for classification of Constitution and its division into Unitary and Federal, Written and Unwritten, and Flexible and Rigid. Then it discusses the classification of constitution on the basis of its Legislature and on nature of executive climaxing with a quote on the importance of Judiciary.
Classification - “The basis of our classification must be found, therefore, under the five following heads: (1) the nature of the state to which the constitution applies; (2) the nature of the constitution itself ; (3) the nature of the legislature ; (4) the nature of the executive ;(5) the nature of the judiciary.” [45]
It is to be noted that the discussion on the World Constitution will have to address itself to these five points.
Unitary and Federal –Strong writes : “Every modern constitutional state belongs to one of two great classes – unitary or federal –….” [46] Further he adds “ A federal constitution partakes of the character of treaty. It is an arrangement made between certain bodies politic which wish to retain certain rights.” [47] He later makes another point: “ There must further be some sort of authority to decide between the federal power and the state power if they should happen to come into conflict. This authority is generally a supreme court of judges.” [48]
To have a Federal World Constitution may be the harder and perhaps more ideal option. But there may be too many hurdles to reach a Federal World Constitution , keeping in mind that there are varying systems in different countries of the world. It may be easier to handle at least initially a unitary type of World Constitution . At the initial stages, one may be called to even dilute the unitary form due to lack of organs like the World Parliament and the World Government, which can await later stage, the Constitution being considered as a super structure over the international system.
Written and unwritten constitution - C.F. Strong discusses with examples how though the Constitution of Great Britain is unwritten, yet it has been considerably modified by certain written laws and statutes. On the other hand he refers to the Constitution of the United States, which is the most completely written constitution, yet into which certain unwritten conventions and customs have grown. [49]
A World Constitution will have to be a written document , but there may be non formal growth in course of time.
Flexible and Rigid - “The constitution which can be altered or amended without any special machinery is a flexible constitution. The constitution which requires special procedure for its alteration or amendment is a rigid constitution .” [50]
A World Constitution cannot be expected to be flexible at the initial stages , till a representative World Parliament is established. Simultaneously it will be difficult to contemplate a totally rigid constitution. Besides being an experiment of some kind at the initial stages provisions for amendment or revision may have to be devised to make it workable.
· Constitutional Provisions beyond Amendment .- With reference to Basic Law-“For here is another novelty: Art. 79 Par.3 of the Basic Law places certain constitutional principles, such as Art.1 and 20, beyond the reach even of a parliamentary majority capable of amending the Constitution!” [51]
Many constitutions have got some provisions that put certain constitutional aspects beyond parliamentary amendment. For instance , in India the courts have propounded the basic feature theory which puts certain aspects of the Indian Constitution beyond parliamentary amendment. In a World Constitution too one may have to work towards such constitutional provisions .
· Legislature – Strong discusses a triple approach to the classification of constitution from the point of view of legislature. First he refers to the division of Legislature, on the ground of the electoral system by which the voters chose the members of the Lower House , or of the only House in uni-cameral systems, where two questions about the franchise and constituency arise. Second he refers to the nature of the upper House , whether it is non-elective, elective or partly elective. Third he refers to constitutions which give the electorate the power , in varying circumstances to exercise the direct popular check, or in other states where they enjoy no such right.
He further discusses of two kinds of constitutional states as regard to electoral system. They are those that have adult suffrage and those that have a qualified adult suffrage. He also discusses the kind of constituency in existing constitutional states. [52]
At the initial stages the question of legislature can be avoided, as suggested later in the discussion. However in course of time constitutional experts will have to discuss whether they will have a World Parliament which is unicameral or bicameral and whether franchise of any sort will have to be introduced. But this perhaps will require a complete change in mindset. Here another problem will be about the kind of constituency i.e proportional representation, multi member constituency, etc.
Nature of Executive – Strong divides constitutional states on the basis of responsibility into two great classes. The first is were the executive is responsible to Parliament and the second is where it is subject to more remote check . If it is immediately responsible to Parliament, it is said to be a Parliamentary Executive . But if it is immediately responsible at definitely arranged periods to some wider body and is not subject to removal by parliamentary action, it is said to be a Non-Parliamentary or a Fixed Executive. [53] .
As the initial stages on similar lines to the Parliament, the question of Executive need not arise. However this will be the discussion needed at the later stage of the evolution of the World Constitution , to which the legal experts can apply their mind.
· Judiciary - “ As the Constitution is unable to protect itself, it had to be placed under the protection of the judges, which is why the judiciary today holds such an eminent position as one of the essential constituent elements of the rule of law.” [54] .
So perhaps the first step towards a World Constitution is the setting up of judiciary, with powers to interpret the Constitution itself and to bring about element of justice in international relationship .

International Law
The authoritative extracts on international law have been discussed under four subtitles: (a) Jurisprudential analysis of international law, (b) International law visa-vi municipal law, (c) Sanctions in international law, and (d) Miscellaneous quotes on international law.

(a) Jurisprudential Analysis of International Law.
In this part the jurisprudence on international law has been discussed using authoritative quotes which bring out the views of Grotius, Austin and Oppenheim on international law together with Prof. Hart’s analysis on Austin’s controversy. Also Kelson’s grundnorm theory of international law together with a critique of the theory has been presented before the readers.
· Views of Grotious: - “To the law of nature Grotius opposed the “volitional law,” whose rules could not be deduced from immutable principles by a clear process of reasoning and which had their sole source in the will of man. A combination of both forms of law, in his opinion, existed in the law of nations. Grotius devoted the main part of his lifework to investigating this combination. To him the law of nations consisted of those rules which had been accepted as obligatory by many or all nations, but he sought its deeper roots in the natural principles of social life which followed from man’s social impulse, namely in the principles of the law of nature.” [55]
Could a World Constitution with elements of fairness and justice provide the deeper roots which Grotius looked for in the natural principles of social life?
· Austin and international law –“ International law did not fit Austin’s definition of ‘law properly so called’, so he excluded it from further consideration; which was unobjectionable in itself. Unfortunately what he said, in effect , was, ‘This is the definition of ‘law’ which I propose to adopt. It is the proper meaning, and I exclude international law because it is not properly called ‘law’ ’.As might have been expected , international lawyers , incensed at this denigration of their subject, took issue with him. Had they, for their part, simply replied : ‘ Use the word ‘law’ how you like, but we shall use it for out subject’, no controversy need have arisen . Instead, they took issue with him on the ‘proper meaning’ of the word ‘law’. To this extent the controversy was verbal and sterile. ” [56]
· Oppenheim’s view – “Oppenheim , for instance , defines law as a body of rules for human conduct within a community , which by common consent of this community shall be enforced by external power.” [57]
· Prof Hart’s view on Austin’s controversy- “Professor Hart thinks that the controversy is more than just a disagreement about words, because the application of the general term, ‘law’ to a whole discipline like international law is different from the application of a name to an object. The question, he says, is one of analogies. (a) There are rules prescribing how states ought to behave, which are accepted as guiding standards just as in municipal law. (b) Appeals are made to precedent, writings and treatises as in municipal law; not to rightness or morality. (c) Rules of international law, like those of municipal law, can be morally neutral. (d) Again, like rules of municipal law, they can be changed by conscious act, eg by treaty. Accordingly, Professor Hart submits that there are sufficient analogies of content, as opposed to form, to bring rules of international law nearer to municipal law than to any other set of social rules.” [58]
Professor Hart’s analysis is interesting. While one can see the various developments in international law like rules prescribing how states ought to behave , precedents, writings , treatises etc. the weakest link appears to be the reliance on treaties. In this present century wouldn’t a constitutional development be a better and safer basis for international law?
· Grundnorms in international sphere – ‘In the international sphere there are two possible Grundnormen, the supremacy of each municipal system or the supremacy of international law. The argument based on the former, as pictured by Kelsen , would run as follows. Every national legal order cannot ex hypothesi recognise any norm superior to its own Grundnorm. The English legal order does not apply in France , nor vice versa. Nevertheless, the English legal order recognises the validity of the French legal order in France; and if the only Grundnorm known to English law is its own, it follows that the English legal order regards the validity of the French legal order in France as being in some way a delegated normative order from the English Grundnorm. Similarly , approaching the matter from the French side, the French legal order can only recognise the validity of the English legal order in England as being derived from the French Grundnorm. Such is the outcome of the doctrine of national sovereignty and it tends to a state of anarchy in which each national order recognises only its own Grundnorm and endures other legal orders as subsidiary to it’ [59] . Kelsen declared that the Grundnorm of the international system postulates the primacy of international law. ‘ Nations in practice, he argued, recognise the equality of each other’s legal orders, and the doctrine of equality must mean that they recognize the existence of a Grundnorm superior to the Grundnormen of their own particular legal orders. The equal force of national systems is an impossible notion unless there is some higher authority , which bestows equality .’ [60]
It is interesting to note that the Grundnorm of the international system postulates the primacy of international law. On the other hand every national legal order cannot ex hypothesi recognize any norm superior to its own. Is there a conflict between the two ideas? Can one attempt to bring harmony between the two? Can certain constitutional principles provide the answer to resolve the conflict?
· Kelsen questioned – “All this is questionable . The first thing which his theory requires , is the Grundnorm of the international order. This is by no means clear; it may be the principle pacta sunt servanda , or ‘coercion of state against state ought to be exercised under the conditions and in the manner, that conforms with the custom constituted by the actual behaviour of the states’; but other suggestions have been offered by other writers. As Stone has commented,
‘It is difficult to see what the pure theory of law can contribute to a system which it assumes to be a law , but which it derives from a basic norm which it cannot find’.” [61]
Could a World Constitution provide the basic norm ? Is it implicit from Kelson’s approach? Was it the missing link of his theory? However such a World Constitution will have to answer the test of minimum effectiveness.
· Grundnorm for international law – a mere supposition ?- “It looks as if Kelsen shifted the meaning of Grundnorm . With reference to municipal law it was pointed out that the Grundnorm has to possess some basis in fact, namely , a minimum of effectiveness. It would seem that with reference to international law the Grundnorm is a pure supposition lacking even this basis.” [62]
Was Kelsen struggling with international law because it is yet in a state of flux? Can for instance a constitutional basis for international law make it more stable as a normative system?
· C.K. Allen on Kelsen – “Kelsen insists that International Law is to be considered as essentially a ‘juridical order’, and that all other interpretations of it are not only valueless but mischievous. But it is obvious that there must be great difficulty , at the outset , in fitting so incomplete a system as International Law to Kelsen’s rectilinear design of a ‘normative science’. He himself shows – as, indeed, he could not deny –that International Law lacks most of the characteristics of ‘law properly called’ - in particular , constituted organs for legislation, adjudication, and legal execution. Most of all it lacks that ‘apparatus of compulsion’ which he teaches us is indispensable to all law in the true sense. How, then , can this inchoate ‘juridical order’ be described as law ? The Viennese School answers that it is a type of, or at least an analogy to, primitive law ; it is at the same stage of evolution as the legal systems of early uncivilized communities , which also lacked the constitutional organs and the explicit rules of modern States, and which were governed solely by customary law. ” [63]
If one can look at Viennese School as looking out for a missing link, perhaps a World Constitution , can one defend that analogy ?Isn’t international law at primitive stage if one supposes that there is something missing like a constitutional grundnorm and if it is that order to be achieved by the society?

(b) International Law Visa-vi Municipal Law.
Under this section it is decided to quote authorities to present international law visa-vi the municipal law, as well as to show how there is no single criterion for identification of rules of international law, rather one notices varying criteria of validity used in different international tribunals. As a consequence there been less predictability of decisions in international tribunals unlike in municipal courts. Also here are placed before the reader some considerations shown in municipal courts towards international law.
· International Law visa-vi municipal law - Dias in his Jurisprudence writes : “ There is a view put forward by international lawyers that international law ‘ is per se part of the law of the land’, which was originally based mainly on dicta in certain ancient cases the decisions in which, however, were based on statute.” [64] Dias further says that it is not possible to express an opinion on this view until the meaning of ‘per se’ is clarified. He claims that there is no dispute that an international treaty law does not became part of English law until the treaty provisions are incorporated in the Act. He also says with regard to customary international law, there is no dispute that a rule of customary international law cannot go against a statute or precedent . [65]
· No single Criterion for identification – “ …whereas the courts of a municipal order appeal to the same criterion , or criteria, by which to identify ‘laws’ , there is no coordination in the ways in which rules of international law are identified. There is no single criterion of identification, because there are unrelated sets of tribunals, each of which identifies international law differently…..” [66]
Hence if at the earlier stages of a World Constitution the adjudicatory arm can be constituted with say a World Constitutional Court as the apex body , then slowly one can expect a better coordination in the ways in which rules of international law are identified.
· Varying criteria of validity in international tribunals – “ There is the further difficulty of identifying rules of international law , especially customary rules, because the criteria of validity vary with different kinds of tribunals” [67]
If there was just an apex international court to interpret international laws, will the above problem be minimized?
· Less Predictability of decisions in international tribunal – “The predictability of decisions in any international tribunal is less than in municipal tribunals because there are fewer agreed rules and because of the greater intrusion of political considerations and national self –interest. Indeed, ‘vital interests’ and ‘national honour’ prevent every important issue ever going before courts.” [68]
With the growth of constitutional law at international level one can expect a greater degree of predictability of decisions of international tribunals. Also it will reduce political considerations of vital interests and national honor, which prevent important issues from going before the courts.
· Some considerations in municipal courts about international law: Dias in his Jurisprudence writes: “Further points are ( a ) Statutes will be construed so as to avoid conflict with international law. (b) Acts giving offence to friendly powers will receive no assistance from the courts. (c) The law of extradition shows an elaborate pattern of rules that are the outcome of accommodating the need to co-operate with other countries in suppressing crime and to uphold the liberty of the individual. (d) Where courts have discretion , the manner of its exercise will be influenced by considerations of comity. (e) Delicate considerations are also involved in defining the attitude of the courts to foreign confiscatory decrees The validity of such decrees in the country in which they were passed will not be questioned by British courts, for indeed no point would be served by so doing ; but they will not be given effect in Great Britain. (f) When a diplomat has committed a tort or breach of contract , international comity demands , on the one hand, that he be accorded immunity from suit, but corrective justice demands, on the other hand, that the victim be given remedy. Use has accordingly been made of the ‘sanctionless duty’ idea, ie the diplomat is under a duty to pay , but is immune from process. The significance of this is that third parties, such as insurers and sureties, can be held responsible while the diplomat himself goes free. Conflicting considerations of this kind have shaped the concept of duty. (g) Since Britain’s entry into the European Economic Community the Court of Appeal has held that courtesy towards other member states requires the revision of certain traditional rules. [69]
The above considerations may have a better and sounder development under international constitutionalism.

(c) Sanctions In International Law
Under this section Paton’s view on unnecessary academic preoccupation with sanctions is presented , together with the deficiencies of International law and its problem with sanctions .The last text presents Dias’ interesting analysis of the binding force of international law.
· Preoccupation with sanctions –Bodenheimer writes: ‘Paton has aptly said: “ Academic preoccupation with the sanction leads to a false view of law . The idea of health does not at once suggest to our minds hospitals and diseases, operations and anesthetics, however necessary these things may be to maintain the welfare of a community. The best service of medicine is the prevention of disease, just as the real benefit of law is that it secures an ordered balance which goes far to prevent disputes.” Just as medicine operates at its optimum level when it becomes unnecessary to cut into the human body , the law registers its greatest triumphs when painful interferences by the authorities with the life, liberty , and property of the citizens are reduced to a minimum.
One of the most challenging testing grounds for the sanction theory of law is the field of international law. John Austin denied the legal character of international law on the ground that its rules and principles are not laid down by a sovereign political superior , and because no legal sanctions are prescribed which guarantee compliance with its precepts. Hans Kelsen challenged the validity of the second proposition on the ground that, under international law, coercive acts in the form of reprisals , economic boycotts, and resort to war are authorized under certain conditions as a reaction against international derelictions. He considered it immaterial for the purpose of establishing the legal nature of international law that these sanctions, in most instances , are administered by the state which has suffered the wrong rather than by a superior and impartial international agency or international government.” [70]
Can a constitution provide impartial international agency which is able to undertake some kind of adjudication in the international field which enjoys a compulsory jurisdiction over all nations and peoples of the world? Would this satisfy the criteria of sanctions as long as the world fails to form the World Government?
· Enforcement and International Law – “ It must, of course , be admitted that the deficiencies in the enforcement procedures of international law detract greatly from its usefulness and effectiveness as a pacifier of nations. In this respect, international law has sometimes been compared with primitive law, which is also lacking in efficacious sanctions administered by a government. But these considerations merely help us to understand that international law is an inchoate and weakly developed system of law; they do not force us to the inference that it is no law at all.” [71]
Under international constitutionalism, is there a possibility for international law to grow as a system of law?
· Legal Sanctions – “ It must be observed in conclusion that the problem of legal sanctions in general is tied in with the order function of law as well as with its purpose of promoting justice. Legal enforcement measures are designed to implement and strengthen the orderly, consistent, and efficient administration of the law. If justice is lacking in the legal system , reliance on the use of governmental force may become perverted into a paramount policy objective of an unpopular government. On the other hand, a just and satisfactory legal system that has captured the allegiance of all in thought and actions would not be in need of sanctions, The imperfections of men and institutions make it doubtful that this ideal condition will ever be attained. As long as substantial numbers of lawbreakers exist in organized societies and in the community of states, the law cannot dispense with compulsive enforcement as an ultima ratio of its operational effectiveness.” [72]
Can a World Constitution attempt to provide a just and satisfactory legal system that will capture the allegiance of all in thought and actions at international level?
· Binding force of international law –“More interesting is the manner in which rules of international law work, with which is associated the question of obedience to it. The basis of the ‘binding force’ of international law is commonly ascribed to consent, which is not a satisfactory explanation. A basis in consent presupposes some rule which makes consent obligatory; and the basis of that rule then requires elucidation. Again, if consent is the basis, it would follow that once consent is withdrawn, the obligation to obey ceases. It has been pointed out with regard to municipal law that consent is unrealistic. Individuals are never asked if they consent to be bound by municipal laws, which are treated as binding regardless of consent. The point only arises when some dissident declares that he no longer accepts a law, in which event the question is not whether consent makes a law binding, but whether withdrawal of compliance can deprive it of its obligatory force; which is a different matter. Here, the coercive power of the state, manifested in its sanction machinery, comes into play, and this is so overwhelming as to make it quite immaterial what the individual thinks. Accordingly, as has been suggested, there is no point investigating ‘the binding force’ behind laws as if this is some ‘thing’ which can be isolated, but it would be more meaningful to ask: Why do people obey? and, What machinery is there for dealing with disobedience? The so-called ‘binding force’ rests in the psychological reactions inducing people to obey, among which fear of organised force is one factor. In the international sphere , there is no effective machinery for applying overwhelming , organised force . The principal reason why states choose to obey international law are fear, if at all, of their neighbours and self-interest. Fear operates through war, reprisals, retaliation, pacific blockade and naval and military demonstrations. These have comparatively little effect and, in any case, are calculated to deter weak rather than strong states Fear of action taken by the United Nations Organisation is very slight , for such action is inhibited by the use of the veto in the Security Council. The greatest short-coming of international law is the absence of effective machinery to carry out sanctions. In any case, such action as might be taken is more likely to influence weak rather than strong states. The result, therefore, is that whether or not a given state at any time abides by a given rule of international law depends upon a balance between various considerations, eg a desire to secure fair treatment for its own nationals at the hands of other states, nationalism, tradition, morality, diplomacy, economic interest and , possibly , fear. All this makes the working of international law very different from that of municipal law. In brief , international law continues in being mainly because states and international lawyers find it useful and profitable.” [73]
It is evident that consent is weak part of international law. The problems can be complicated especially with the rise of terrorist outfits who may be working across continents. Hence it is necessary to check whether one can rely on the consent theory or may have to go beyond it . There must be some minimum law, which is binding on all irrespective of consent.

(d) Miscellaneous Quotes on International Law.
Here assorted quotes are presented to the reader. The first concerns whether international law is infact a borderline case , while the next claims that less respect is given to international law than domestic law. There is a quote on merchant customs which is very relevant to demonstrate that it was not a product of domestic genius. In this present developing global situation, it is very significant to know as to who are the subjects of international law. The last quotes concern with new developments, whether they are towards supra national control such as those observed in the European Community law.
· International law –a borderline case – “Clearly international law is a borderline case. It lacks certain important features, characteristic of a standard legal system, such as legislative organs, courts with compulsory jurisdiction and institutionalised methods of law enforcement .” [74]
· Less respect for international law – “ It is a fact that the respect which states pay to international law is less than that which individuals pay to municipal law. There has always been a need to enhance the prestige of international law by calling in aid the magic of the word ‘law’, especially in creating a sense of obligation.” [75]
Merchant customs – “Neither England nor any other European country can claim that the merchant customs which have established themselves in its law are the product of any particular national genius.” [76]
If merchant customs are not a product of any national genius, so the World Constitution may not be a product of a national genius.
· Subjects of international law – “….the subjects of international law are primarily states , and the disparity in strength between them far exceeds that between individuals in society. Besides, there are other institutions which have claims, duties etc, but which are not states. Examples would be the United Nations Organisation, the Holy See between 1871 and 1929 , various other specialised agencies and so on. Individuals as such are increasingly becoming subjects of international law, which enhances the disparity between the various subjects.” [77]
With the rise of terrorist groups which may function like multinationals across a set of countries one will be forced to give due weightage to them under the subject of international law and hence the element of mere treaties between sovereign states may be meaningless.
· Supra-National Control – “There is no external body yet in existence which can prevent the abuse of municipal power over individuals. Two developments, which are steps in that direction, are the European Court on Human Rights and the European Economic Community with its own Court. The former is indeed concerned with the individual, but it is not as significant as the latter which , though confined to economic matters, could be regarded as limiting the legislative competence of member states. If there were to be a Human Rights Treaty with machinery analogous to the relevant aspects of the Treaty of Rome, this would provide a check on power transcending national legislatures. For this reason, and also because of its impact on the doctrine of parliamentary sovereignty, the implications of membership of the European Economic Community need attention.
Community law is sui generis , not susceptible to classification either as international or federal law. Both the European Court of Justice and municipal courts have regarded it as a new kind of legal order. …” [78]
There appears to be a need for supra-national control at least in some areas like for some minimum basic Human Rights. As suggested it could be with a machinery on analogous line to the Treaty of Rome. However it would be better to have such a machinery set on a Constitutional basis than merely on a treaty that seeks to bring a new legal order.
· Priority of community law? – “From the point of view of Community, the European Court and some municipal courts have accepted the ‘priority’ of Community law and have even talked in terms of a partial surrender of sovereignty by member states. Moreover, the European Court has pointed out that the Treaty demands the supremacy of Community law over domestic law and that art 189(2) would be pointless otherwise.” [79]
There is still a confusion persisting as can be observed on the priority of Community law. Such a confusion can be avoided by having a Constituent document where the priority principle is clearly set out in the document whose power comes intrinsically from the document. Gradually the World Constitution can be expected to develop principles of how to settle conflicts between municipal courts and the international law.
· Harmony at transnational level – “ While domestic law strives to safeguard intragroup harmony and cooperation, international law pursues the same aim on a transnational or world basis. It seeks to reduce the causes for international strife by fashioning norms and procedures to facilitate political and economic intercourse between nations, to adjust disputes and grievances among them , and to protect the nationals of one country residing under the temporary sovereignty of another country. It will be generally conceded, however, that because of the incomplete character of its normative system, and certain serious weaknesses in its processes of enforcement, international law has not been greatly successful in eliminating the sources of international friction and in composing severe differences between nations” [80] .
Can a World Constitution help to strengthen the normative character of international law? Can it reduce the causes of international strife?

United Nations
The following ideas on the United Nations from various legal experts may be relevant for a further discussion on a World Constitution. They concern about the danger of the failure of U N, and how this institution is adapting to change , as well as its role in building a world order and the problems it is facing. A significant point is whether the U N is a Parliament. Also its relation to the World Court is a major factor for consideration, in any discussion of a World Constitution
· Danger of the failure of U N : “And this much at least is certain : if the failure of the League of Nations proved costly, a like failure on the part of the United Nations would be fatal, for civilized society would surely not survive a third holocaust under the conditions of the nuclear age in which we live.” [81]
It is pertinent to note that even in the drafting of the World Constitution one has to assume the importance that the U N has gained in the present world. So it is dangerous to dismantle such an organization without a proper substitute in its place. So even if the evolution of a World Constitution becomes a reality, one has to see how to make best use of such an important organization as the U N
· U N and Change – “The United Nations is a necessary institution, and it has managed to survive in our tumultuous world because it has been able to change.” [82]
· U N and the World Order – “The United Nations is an instrument to help in building a world order based on the principles of justice and international law, but it differs greatly from the traditional diplomacy it supplements and to some extent replaces.” [83]
· Problems with U N – “ The problems of globalization and fragmentation have caused vast responsibilities to be given to the United Nations. But the United Nations has not been given the political, military, material and financial resources required to accomplish the task imposed” Secretary General Boutros Boutros –Ghali in Cyril Foster Lecture at University of Oxford , 15 January 1996. [84]
Can a World Constitution provide some teeth to the UN?
· Is U N a Parliament ? –“It is the practice of public debate , followed by voting , which has given to so much of contemporary multilateral diplomacy its ‘parliamentary’ character , yet the General Assembly is not a parliament.” [85]
It is relevant to note that as mentioned by the author that in U N there is no political executive comparable to a national cabinet , that the tones of the debates are different and the leadership changes from issue to issue. Hence one can conclude that the U N cannot act as a legislature to the World Constitution. However, the question that can be raised is whether the U N could serve as a legislative body for some limited purposes initially for a World Constitution say for instance for amendment or revision ?
· U N not a World Parliament – “The General Assembly is not a world parliament. It cannot legislate, but it can ‘recommend’.” [86]
· UN and non Members of U N - Article 2(6) of the Charter states: ‘The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.’
As the World Constitution is not a convention , the question of members and non-members should not arise and it will be applicable to all the Peoples of the World.
· U N and International Court of Justice - Article 92 of the Charter states : ‘The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statue, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.’
And further Article 93 (1) “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.”
· World Court - Binding Authority ? – “It is unfortunate that the World Court despite its vast jurisdiction has no binding authority unless States bind themselves in advance to accept its jurisdiction , in special cases , either by signing a treaty or convention which provides for referral to the Court or by making a special declaration to that effect. Such a declarations accepting compulsory jurisdiction may exclude certain classes of cases.” [87]
Under the World Constitution, Courts will be presumed to have binding authority.

Opinions on World Laws ,Peace and World Order
Following are some of the opinions of prominent people concerning peace, a new World order, or a system for settlement of international disputes :
· Global Concerns “ Today it does not seem surprising that governments and peoples should be concerned about distant tragedies or quarrels; there are no longer any far-away countries.” [88]
· A law of the World? -Roscoe Pound discusses in his book ‘Jurisprudence’ about a possibility of the law of the world. The subtopic is titled as “ What of a next stage –A law of the world ? In that piece he refers to the cult of local law. He writes : “Indeed it seemed to be held as a mater of course that the law of the time and place had an all sufficient basis in the local political sovereignty and could be thought of solely in terms of that sovereignty.” He then states that a change has come on the above thought. He refers to the commercial transactions which by their nature go beyond the country’s boundaries. Pound points out that the area of conflicts of law has today gone beyond local law. In this connection he writes : “ Conflict of laws as something more than local law did not find a place in the curriculum of American law schools generally until the present century was half over.” [89] His conclusion is indeed noteworthy. He writes : “ Working out a theory of the relation of local legislation and administration to universal principles of law for a unified world may become the compelling task of the jurist of tomorrow.” [90]
· Liberal minds in the modern world -“To the Roman passion for unity and its continuity as an ideal in the Middle Ages may be traced the prevailing dream of liberal minds in the modern world that at last there may be established an international or supra-national authority for the prevention of war.” [91]
· Views of Bernard Shaw -George Bernard Shaw , writing when Russia was still governed by Tsar Nicholas II, based his plea for an international organization to maintain peace on the assumption ( which at the time was regarded as slightly subversive ) that international problems after the first world war would not differ essentially from those that had existed before, and indeed had caused , that war. [92]
· View of Lester B. Pearson - ‘We prepare for war like precocious giants’, said Lester B. Pearson in his Nobel Peace Prize lecture, “ and for peace like retarded pygmies.’ [93]
· View of Mac Arthur _ “Military alliances, balances of power , league of nations, all in turn failed, leaving the only path to be by way of the crucible of war . The utter destruction of war now blocks out this alterative. We have had our last chance. If we will not devise some greater and more equitable system, Armageddon will be at our door.” [94]

(B) PRELIMINARY QUESTIONS
With respect to the idea of a World Constitution certain preliminary questions are raised to which answers are attempted. The following questions may be posed: (1) What sort of document is this World Constitution? (2) How could the document be processed ? (3) What could be the contents of a World Constitution? (4) Does such a crippled document ( if the World Constitution turns out to be so initially) deserve the label of Constitution? (5) From where will the sanctions come? (6) Can a World Constitution serve as a grundnorm? (7) Will the Constitution contemplate a World Parliament and a World Government ? (8) Will such a document contemplate an adjudicatory body ? (9)Will such a document have preeminence over the U N Charter ? (10) Will such a document replace the U N Charter?
(1) What sort of document is this World Constitution?
There are no fixed ideas as regards the nature of the document. To begin with, it could just be debate on the jurisprudence for a World Constitution. This is the easiest step and this is a duty of the legal community to debate, suggest a model, and put pressure on the nations of the world. On a more serious note , the process could involve the drafting of a scanty document containing certain principles of the rule of law , some principles of Human Rights and other such matters which are necessary to control international activities at least in the extreme cases. Even though they may not be having any sanction in the absence of an adjudicatory body , they may serve as guidelines for the nations of the world to chart out their course of political action. In the alternative, it could even be a document envisaging a world adjudicatory body. Later and gradually the document could even contemplate a World Government and a World Parliament. The document should contain a vision which will permit it to grow with the course of human experience.
(2)How could the document be processed?
The document could be a draft made by a private organization like the Institute of International Law, New York ,prepared a Declaration of Human Rights and Duties in 1929 . It could be a document which is passed in the name of the Peoples of the World with a signature campaign world wide which are deposited at a suitable place. It could be an International Convention signed by the countries of the world , with a clause that such an international convention will get the status of Constitution. As such it will be obligatory on all nations and peoples of the world , irrespective of their national stand, when the document has been ratified by a great number of nations. It could be a document under the auspices of the U N but with a far reaching importance than the U N Charter, achieving the status of Constitution.
(3) What could be the contents of the World Constitution ?
At present one may keep several options open as regards the nature of the World Constitution. However some probable issues can be listed to serve as points to stimulate a debate.
A World Constitution could carry a Charter of Fundamental Rights and Duties of a States, a Charter of Fundamental Rights and Duties of Peoples of the World , keeping them to a minimum unlike the Human Rights Charter. This is because certain principles may not be practical to be implemented on all civilizations at this stage. Probably some kind of adjudicatory body will be needed to make the Constitution a living and workable document. However if necessary one may start even without that minimum. A possibility of having a World Constitutional Court for constitutional issues can be contemplated as well as the World Supreme Court. The World Parliament and a World Government may have to be kept out at this stage due to several complexities. Some role may be given to existing international institutions such as the UN.
(4 ) Does such a crippled document, ( if the World Constitution turns out to be so initially ) deserve the label of Constitution?
Strictly speaking the term Constitution may not be suitable for a document, which does not concern a state , and is not sure of the growth of its three organs. On the other side one may argue that one could conceded the term constitution to a global document even though it does not concern a nation. Just like some claim that International Law is law and advocate that line of thought, one could extend the term Constitution to such a document. One could argue like Salmond does for International Law that it could be considered as a borderline case.
Consider the situation where the proposed World Constitution has merely; a) A few principles that govern relationship with sovereign nations ,b) Has provisions that take account of the dangerous subversive issues that threaten world peace .community life, c) Has provision on a World Constitutional Court and other conciliatory, mediatory and adjudicatory bodies , d) Provides for a Charter of Rights of Peoples of World e) Has enshrined in it a Charter of Rights of Sovereign Nations, f) Has few principles for conflict between Nations , and other similar matters. Then can one call such a document , a constitution? Presumably such a document is not a constitution , as it lacks the main organs of government . However it could be argued that the use of the terminology constitution or quasi-constitution even to such an incomplete document , would enhance the prestige of the document. It will show its binding nature on all nations and groups and demonstrate its preeminence over other laws . It possibly will bring a culture of the supremacy of the rule of law and help the growth of constitutional culture in international law. So the preliminary document can serve for expanding constitutional ideas and if carefully drafted can sow the seeds for growth into a full fledged constitution in the future.
(5) From where will the sanctions come ?
A question that may be posed is as regards the nature of sanctions. Austin denied the label of law to international law on the ground that it had no sanctions. Kelson felt that the sanctions in international law came from war and reprisals. If doubts have been expressed about the sanctions of international law, similar questions are bound to be posed about sanctions in a World Constitution.
A question that comes to mind is whether the law flowing from a World Constitution could have better sanctions than international law. Let us analyse the possibilities. Suppose the Constitution is the result of an exercise in jurisprudence involving private initiative . Then such a document cannot have better status than a convention in international legal circles inspite of the popular support it may enjoy. In such a situation , the sanctions can be said to have a moral value. On the other hand if suppose the document has resulted from a convention say under the flag of U N, or though it has come from a private initiative it is accepted by nations of the world, then resultant document has much better status than a convention as it has been accepted as a World Constitution.
Real sanctions as in domestic law may emerge in course of time under the flag of a World Constitution. That is possible only if a World Constitution grows to its final stature and meets de facto the requirements of minimum effectiveness. That is the ultimate goal for a World Constitution.
(6) Can a World Constitution serve as grundnorm ?
If one means that all the laws of the world must be based on a single grundnorm , that is too much to expect. One cannot expect that all the laws of the world are a normative pyramid, based on one single grundnorm. But in a more restricted sense we may be able to visualize a grundnorm for the international system. It will imply that all the laws of the international system must be rooted on that grundnorm. But this is not possible unless for instance there is full growth of a legislative body that will be creating the norms on that grundnorm as well as have the past laws to be embedded in that grundnorm. For the initial stage, one will have to assume that the World Constitution is not a grundnorm of the international system , but merely as the superior highest norm in international scenario. So at the last stage, a fully developed World Constitution can serve as a grundnorm to the international system.
(7) Will the Constitution contemplate a World Parliament and World Government?
It does not appear that at this stage a World Parliament and a World Government could be contemplated by the Constitution due to several political hurdles. That could be the ideal to which the Constitution may grow in the future . Perhaps at certain places, the document could use the existing international institutions for specific purposes. For instance the U N has done a fine job in maintaining world peace and has found some acceptability in the present international regime. Though the U N cannot be said to be a World Parliament , the World Constitution may have provisions giving a role to the U N, for instance in the Amendment and Revision of World Constitution.
(8) Will such a document contemplate an ad judicatory body ?
It appears that in order to provide just solutions to international problems, the Constitution will have to incorporate some kind of ad judicatory body that will be needed for the interpretation of the Constitution itself, as well as settling issues of constitutionality of other international documents. However, it is to be noted that if this becomes a real hurdle then one can begin with a softer document with merely emotive and humane appeal. If one plans for an adjudicatory body, perhaps one may have to think of an International Constitutional Court and if necessary backed by World Supreme Court of Justice. The ultimate ideal will be to have a hierarchy of courts under these two institutions in future. But that could be the far away goal. Judicial institutions if incorporated will make the Constitution both workable and dynamic. Besides provisions could be made for constitutionally recognized organs like an official Conciliatory and Mediatory body for international conflicts to whom recourse could be obligatory as well as suo motto .
(9) Will such a document have preeminence over the U N Charter ?
If the document has no legal sanctity, as for instance when the document is made by an academic institute , it will not legally have a pre eminence over the U N Charter. However while drafting it , one must assume that it will have pre eminence over even the U N Charter. That is the philosophy and mind set on which it is to be built. It is the Peoples Document. After all, it is to be considered as a Constitution and it can have extra legal origin.
But there is another possibility that the document comes out of a Convention. Imagine that is it is signed by large number of countries. Alternatively imagine that the Convention is a result of the U N effort and it is signed under its auspices and by all its members. Yet one can say that the document has a preeminence over the U N Charter. After all it is considered as a Constitution. Though the birth may be within the U N framework ,as a Constitution , the document is binding on all the nations and groups recognized or otherwise across the globe, whether there is a consent of the nation concerned or not. If one says that the document should be just like another convention, then it cannot possess the elements of a Constitution. It can be merely termed as a convention on principles of rule of law in international relations.
(10) Will such a document replace the U N Charter.
U N has played a pivotal role in international relations and it is dangerous to replace it at this stage till a better organization develops in the world. Perhaps, the ideal will be to strengthen the U N to reach that goal. So even if a World Constitution is accepted, as long as it is a weak document one will have to maintain the U N. One can look on the World Constitution as a superstructure, a kind of natural law but positive in form controlling international relations. The Constitution will merely reinforce the work of U N. The World Constitution could even help the U N to grow and come out of its straight jacket of convention. The actions taken by the U N under the World Constitution could be contemplated to have an obligatory character. The World Constitution could use the U N as a constitutional organ for certain defined purposes. For instance the Revision or Amendment of the World Constitution could be kept in the hands of U N with each member enjoying one vote. Such arrangements may be necessary and practical in the working of a World Constitution.

(C) ADVANTAGES OF A WORLD CONSTITUION
The following are some of the advantages for advocating a World Constitution. The advantages cited below are applicable for a fully-grown Constitution. In actual practice, however one may have to settle for an imperfect document, which for convenience sake is labeled as a Constitution. In this case some of the advantages cited below may not apply to that type of document. However as a theoretical exercise, it is decided to outline the advantages of a fully developed World Constitution. Another limitation here is that the advantages may have been duplicated, but a repetition may be pardoned at this discussion stage.
1)A World Constitution or a similar document is a mandatory requirement in the near future.
2) A World Constitution can act as a Grundnorm to the International System.
3) The term “Constitution” can give pre-eminence to the Document over other International documents.
4) A World Constitution is automatically binding, as different from a convention based on agreement.
5) Political Power cannot provide for world security – A Constitution may do so.
6) In a Constitution, power can be made to flow from the Peoples of the World.
7) A World Constitution can enhance National Sovereignties.
8) A World Constitution can provide cohesion for an international system.
9) A World Constitution may help in changing the present mental set up and approach to problems with development of new concepts.
10) A World Constitution may serve in bringing harmonization between international laws.
11) A World Constitution may serve in systematizing a Human Right regime
12) A World Constitution can protect people of a country from genocide or self annihilation or destructive policies followed by that country itself.
13) A World Constitution may aid in building International System .
14) A World Constitution may provide a basis for the Rule of Law.
15) A World Constitution can foster the growth of International Constitutionalism.
16) A World Constitution can bring a sense of equity in world justice system
17) A World Constitution may provide for global security as world peace is an internal (intrinsic) constitutional matter.
18) A World Constitution may help the growth of new concepts from Nationalism to Internationalism.
19) A World Constitution may help the growth of Environmental Law.
20) A World Constitution can assure nations of their territorial integrity to a certain extent.
21) A World Constitution can permit a limited use of the principle of lex injusta non est lex.
22) The World Constitution may provide an anchor to the foreign policy of many smaller countries.
23) A World Constitution may help in controlling arms race and avert future wars.
24) A World Constitution may help the growth of a more realistic jurisprudence of war.
25) A World Constitution may coordinate to provide for criterion , or criteria for identifying rules of international law.
26) A World Constitution may develop the doctrines concerning unconstitutionality which may give a sense of justice in the field of International Law.
27)A World Constitution can provide a kind of guarantee to the other democratic constitutions.
28)A World Constitution can change the attitude of municipal courts towards international laws.



1) A World Constitution or a similar document is a mandatory requirement in the near future.
It is clear that a World Constitution is the mandatory requirement for the world order in the near future. The growing number of Regional Agreements is a pointer towards that direction. The needs of the future international society will demand a constitution for its international affairs. Even though legal scholars may neglect the issue for a World Constitution today , the demand is bound to result from pressures and tensions between countries, societies and civilizations. However rather than permit this exercise to result from hap hazardous practical international stresses and strains, it is better for legal scholars to chalk out the plan for the future. They can do so by building sufficient legal concepts that will take care of the future world. The discussion and debate has to begin now so that if ever another opportunity is provided, the world community can take advantage of it
2) A World Constitution can act as a Grundnorm to the International system.
Today the international system is hanging without a proper foundation in the sense of a grundnorm. It is based on agreements , bilateral or multilateral . The basis for the international conventions have been agreements, ratifications , signatories etc. The fragile nature of international law, with delicate ramifications on the concept of national sovereignties was sufficient material for the law to make a beginning. But international law is finding itself more and more handicapped in the modern day international relations as a result of fast developing global village. Besides there may be groups which are multinationals, who are not countries and yet have to be subjected to law. At the present stage international law requires a firmer foundations than mere agreement and hence it is imperative to have a World Constitution. In due course of time one can expect the Constitution to develop gradually into a grundnorm for an international system. Till then it is natural that agreements, peace treaties, conventions continue to be the foundation of international law together with the World Constitution.
3) The term “Constitution” can give pre-eminence to the document over other international documents.
The word constitution in the modern day gives a certain sanctity to the document. There may be some who may object to the term constitution especially if one is proponent of national sovereignty in the old sense. Some may say that pushing the idea of a constitution at an earlier stage may hamper its growth and lead to its rejection, due to strong opposition from the nations of the world. But there is nothing wrong in beginning an informal discussion.
The term constitution is to be preferred on account of several advantages. There are sufficient jurisprudential concepts built world wide around the word “constitution”. The term gives a certain amount of pre-eminence, sanctity , etc to that document in the legal regime. For instance there are number of constitutional doctrines in which other laws are checked for their validity. The issue of unconstitutionality is an instance in the case. Hence the terminology “World Constitution” will enhance the sanctity of the legal document. It will enable the document to borrow the various constitutional concepts developed worldwide. It will also make it possible to carry across into the field of international law suitable doctrines of constitutionality developed in various countries of the world .

4) Automatic binding nature of a World Constitution as different from a convention based on agreement.
Agreements cannot continue in the near future to be the foundation for the international law. It is not advocated that agreements do not have a role in the future international society. Agreements may continue and be useful in various spheres of international legal regime. However a document like a constitution will be useful. Though a constitution may have an origin in agreements, its validity has to go beyond the area of agreements.
Today treaties aided with ratification by the respective signatories, reinforce the stability of the document .This is followed by respective municipal laws. But all this is based on the sovereignty of a nation. The problem that remains is whether something surrendered by a sovereign nation cannot be taken back based on the sovereignty principle. Besides what is enacted in the municipal law may be often repealed in the same manner. So it would be better if fundamental rules are put into a constitution that postulates beyond the concept of state sovereignty as understood in a narrow sense today. In fact certain elements of the World Constitution may have to be put beyond amendment and change to assure justice to all.
It is contended here that treaties and agreements cannot provide a system for world security. In the sixteenth century, the Portuguese Sea expansion showed that agreements and peace treaties are no solutions for a legal regime. The Portuguese control of the eastern Seas was on the basis of political power as well as on the peace treaties. With the fall of political power, the Indian rulers did not feel it necessary to adhere to the treaties signed by them, as they looked on those agreements as political compulsions. They did not feel a “sense of obligation.” [95] A thorough analysis of the history of Portuguese at sea clearly indicates that bilateral or multilateral treaties cannot form the basis for stable legal regime in a fast developing scenario, unless there is a feeling of obligation which comes from the sense of justice.
The question that arises about treaties and agreement is that on the changing circumstances do they loose their validity? An agreement has sense as along as the circumstances continue the same. So, it would be a difficult proposition if some powerful countries back out from an agreed convention. Even strong powers appear to show that they do not have to stand strictly by agreements. Besides when the country’s structure changes, like the fall of a power with consequent split and formation of several nations, are all the units bound by the treaties signed by their predecessor state ? So there can be some problems with a regime based on agreements. Problems could be faced by a constitution too, but constitutions worldwide have shown that they can be incorporated with devices that help them to be dynamic adapting to social needs of the time.
The second problem of agreements is about those who are not signatories to it. Can in the global situation some country or group remain out of the world community and behave in such way as to the detriment of the world at large? The UN Charter consists of signatories. What about those who are not signatories? In order to trap such fish a jurisprudence of a constitution will be useful.
5) Political Power cannot provide for world security – A Constitution may do so.
The twentieth century has seen stabilization of international law to some extent on the basis of political power. The post World War II has seen the international law been satisfactorily stabilized under the balance of political power between the two blocks. Fortunately for the world , the balance of political power helped in solving some of the problems after the post World War II. However, the present situation has seen the weakening of the Soviet block , and hence to one block power configuration. Some section of the world felt safe that political power at the turn of the new century was with USA. However there are fears of the power lying with one block. NATO in the long run may feel that there is role to play to neutralize the one power lead. There may be other configurations in the rise in the near future. However such power game is a gamble, with power being something that is not a monopoly of any nation for too long as indicated by history.
The question arises is : Is it possible for political balance by block systems to maintain the international regime and to what extent? Such systems will develop as a matter of politics. But isn’t it more secure, if political structures are controlled by a more stable document? Besides though political power may work for a particular global situation, yet it lacks the sense of fairness and due process from the point of view of majority of the world. Because politics is based on short term national interests even to the detriment of the rest of the globe.
One may argue that politics cannot be replaced by any other system. It may be said that to replace international politics by law will be a disaster. However, with a World Constitution law does not replace politics. It is noticed that in countries that have constitutions and the rule of law, yet politics does have its own role. A properly drafted World Constitution will be subjecting politics to the rule of law and hence help in fostering world security.
The history of ancient Greece , Rome , Portugal and England has demonstrated that no power can guarantee its continuance at the world political helm. The problem can be complicated if world politics deteriorate as often politics is a gamble. The worst could result if the strongest power is a terrorist block. Imagine the situation where the most powerful country is a global terrorist state. Political power structure is no guarantee for the safety of human race. Hence it is imperative for the world security to have a more stable system than mere political power balance. A World Constitution to which the world community feels a sense of obligation , would be ideal.
6) In a Constitution, power can be made to flow from the Peoples of the World .
A World Constitution can postulate that the power flows from the Peoples of the World rather than from the sovereign nations , who might have surrendered power with a purpose. However, the Constitution itself can take account of the various nationalities now in existence. It does not imply that the Constitution does not apply to groups that claim to be outside the umbrella of nation. Thus there is a recognition to some extent to national sovereignties as far as possible. However certain rights which may be conferred on the nations ( i.e. the Constitution may include Fundamental Rights of Nations) flow from the Constitution and not from any sort of surrender by the nations. Hence, national consent is not necessary. Just like nationalism triumphed over the feudalism, and the King’s jurisdiction prevailed over the feudal lords, similarly internationalism should prevail over nationalism, however without destroying nationalism but enhancing it.
7) A World Constitution can enhance National Sovereignties.
National sovereignties appear to be a block to a World Constitution. But this is just an apparent conflict. Today , it is the national sovereignties of few nations that really matter in de facto practice, as a great number of them have to fall in line with the whims and fancies of powerful nations. As long as uncapped political power is the determining force , there are dangers to the sovereignties of majority of the nations. Real sovereignty will be meaningful whenever the rule of law prevails.
Terrorism has proved for the first time that even the powerful countries have their national sovereignties endangered by small outfits. Though often powerful countries are under the impression that their sovereignty does not face the threat from smaller countries, there is no such assurance of protection from non sovereign outfits. Also there is no guarantee that a powerful country will rule the roost for long. In such a circumstances, it is better to surrender the virtual prestige of national sovereignty to the rule of law. In fact such a surrender is not really a national constrain but enhances the dignity of a nation as a member of a civilized society.
In modern world, national sovereignties have lost much of its meaning in the present context. National sovereignties to some extent were in the past a protective shell around their citizens. As the shell has lost much of its utility with the de facto fall out of sovereignty, there is a need for global citizens to find protection beyond the boundaries of his country. It may not be that he is seeking protection against his own country, but even from a hostile country or a terrorist outfit, when his own country cannot protect him. Any global citizen should have protection against any power that sabotages the system on which the civilization depends. For instance, any person in the world should have protection against the posting of an anthrax letter from any part of the globe. So one requires a system that goes beyond one’s countries borders and a World Constitution can best bring about the solution.
Let us imagine a situation where country A and B are two superpowers balancing each other. We can say that these countries enjoy sovereignty de facto and de jure. That means the sovereignty of the countries of the rest of the globe in fact is determined by the policies of the superpower if they desire so. Thus the sovereignties of the countries of the rest of the world are meaningless. If one argues that there will be multi super power structures, with several countries of equal strength across the globe, even in such a situation, national sovereignties are in danger from each other. Even with a single superpower A, it is better for it to be governed by law than merely by its political policies. Legal constrains on national sovereignties are bound to enhance the prestige of ones own sovereignty. Besides, no country has the guarantee that it will continue in power for long . So a World Constitution in its totality will enhance the sovereignties of the countries of the world.
8) A World Constitution can provide cohesion for an international system.
A constitution lays the foundation for a system and provides it with cohesion. The past legal regime is grafted into a constitution. In a constitution the future legal regime finds its roots . Hence it gives cohesion to the system as one whole rather than loose rules. It is not claimed here that the World Constitution can provide such a system at the initial stages of its evolution, but it can be expected to grow to such an extent. At present in the development of international law, there have been specific problems faced by the world and as a response to those issues conventions have materialized. At the initial stages such a system is possible but it grows cumbersome when international conventions and institutions multiply. We see in the international arena a number of conventions around the place each having some distinct root. This causes several problems right from identification, to their dynamics. Each of the conventions has an its own roots and the strength of the convention remains as long as the roots are maintained. The beauty of the constitution is that once it grows to its fullness and the world community feels an obligation towards it, it gives a sound basis for the whole system. The various conventions in spite of the fact that their original historical roots are removed or decayed , they do continue to have life and vitality on the basis of its acceptance into the constitution. One may for instance make some reference in the World Constitution to some of the conventions and they may even be listed in a Schedule for certain purposes.

Initially, it is not to claimed that all the international treaties will find the basis on the constitution. It may be argued that it may be possible to keep some of the treaties and conventions out of the constitutional framework, as long as it suits the present international system. However, if ever the World Constitution grows to a fullness like some of the leading constitutions in the world ,it can be expected to provide total cohesion to the system.
9) A World Constitution may help in changing the present mental set up and approach to problems with development of new concepts.
There are several jurisprudential concepts that will have to be altered once a World Constitution is accepted. Also if a World Constitution works dynamically in the right direction, one can expect new approaches to develop to problems. Just for instance, one will have to take a fresh look at the concept of war, which was centered around the warring parties. Today fortunately the mass media highlights the other silent parties, the victims of the war, the refugees and others. Are their rights not be considered ? Should their interest not be represented through some institution or NGOs before any international institution for mediation, conciliation, or adjudication?
Terrorism has been another curse, for which the present day jurisprudence is struggling with a definition. Should it exclude freedom fighters? We may have to approach the problem from another angle, that is the rights of the affected parties ie the civilians included. Similarly we may have to tackle the problem of suicide bombers, and differentiate misguided individual attempts from a systematic organized indoctrinated outfit. Probably a constitutional approach could attempt to provide solutions to the above problem in course of time.
Similar problem may occur on a country’s right to self defence. The question that has been raised is whether self defence is a blank checque ? The answer may not be easy to determine . A conciliatory, mediatory or adjudicating body may have to take into account several factors and parties before it comes to the conclusion in a particular case. It may involve representation to the international NGOs too to appear before such bodies representing various parties affected by war.
10) A World Constitution may serve in bringing harmonization between international laws.
A constitution helps to bring harmony in a system. A dynamic constitutional growth sees to it that it brings harmony within the provisions of the constitution itself. Also different laws are harmonized through interpretative techniques with the Constitution or are declared unconstitutional.
Harmonization brought through a constitutional doctrine serves also in case of grey areas or when the application of law is unjust, or harsh. For instance, the conventions cannot stand in vacuum, and they have to be considered in the light of overall social security and welfare of the globe. This can be easily secured by a constitution. Just imagine that a particular convention in the future recognizes a particular Patent law. Suppose the Patent Convention has been a product of agreement of several nations by a multilateral treaty. Assuming that the legally recognized patent fall in the hands of a certain multinational , which subsequently turns out to be a terrorist organization. On the other hand imagine that there is the absence of a protecting provision against such activity in the Patent Convention or any other law to which the patent law is subject. In such case there will be two conflicting interest , one of the patent law and another of global social security, the second one perhaps ungoverned by any law. In such case this problem can be easily solved by a constitution. As a constitution has a preeminence over all other conventions, the Patent Convention will have to be tested on the provisions and principles contained in the constitution. The existence of a World Constitution will provide some leverage to an adjudicating body such a World Constitutional Court to come up with some doctrine to deal with the situation that will protect the world community.
In the ever increasing global market, one has to contend with innumerable other Conventions. Trade and Commerce is in focus today. There is a lot of resentment that the conventions worked out are not favorable though based on agreement. The common argument is that we did not intend but had no choice on the face of market forces. Such conventions would have a better acceptability in the next decades if they could come under a constitution. A constitution can give permanency to the system. It can also stabilize through interpretation the harsh and unjust provisions in agreements, and thus make them more acceptable to the global community.
The various charters in the international law, conventions and treaties need to be harmonized between themselves. There may be even a need to harmonize a document within itself For instance in a give practical situation, the Human Rights of various sections may be required to be harmonized . Violations and counter violations of Human Rights of several sections , may occur such as in a riot situation, the Human Rights of the victims, those of the rioters , those of the police and so on .Interpretation teaches us to bring harmony using the document itself i.e. using the principle ex vicerebus actus. But often the existence of constitutional principles too serves in bringing harmony between two provisions of a document. Similarly ,there may be a need to harmonize the various other charters with each other. For instance the Patent Law may clash with the Human Rights Law. Such system has to be organized a under hierarchy of norms with a World Constitution gradually building principles and doctrines for settlement of conflicts..
11) A World Constitution may serve in systematizing a Human Right regime
One may refer to three possibilities on whether Human Rights should figure in a World Constitution . The first stand could be that the Human Rights in wide sense as to include freedom of speech etc. are to be consigned in a World Constitution. However that may not be feasible or even advisable at the initial stages . The second possibility it to have a few essential Human Rights consigned in the World Constitution to begin with , such as right to life and leave others out of it or have them consecrated in the non enforceable Directive Principles. The third is to leave out the Human Rights of individuals out of the Constitution in view that there is a Charter of Human Rights already existing.
No one can deny the usefulness of the existing Charter of Human Rights as these ideals are later developed in the world consciousness. Today this process is supplemented and complemented with various organizations and NGOs working in the cause of Human Rights. However in spite of its usefulness there are some criticisms. For instance some countries have been very critical of Human Rights approach by Western countries. Such a criticism will be reduced gradually, if one has Human rights regime in a World Constitution. A World Constitution will have to take into consideration several systems in the world and hence there is a less possibility of western bias. Besides in the Constitution, one considers the ideas to be one’s own and there is a sense of obligation . So if one works towards making a World Constitution an acceptable reality, many such problems will be solved. Besides the ideas being incorporated in a constitution, there is an intrinsic dynamic method of how the rights get harmonized within the system, as a constitution cannot merely enunciate the principles but has to make them workable in the political circumstances. For instance in several national constitutions, the Human or Fundamental Rights regime existing within respective documents are harmonized with other constitutional provisions so as to make a practical working model within a constitutional framework. It is a fact that even if the same Human Rights in the Charter are incorporated in a World Constitution , their effect in course of time will be different due to constitutional dynamics. Thus in a Constitution there is less possibility that in looking at the Human Rights of the terrorist section, one will do so to the detriment of the peace abiding people. Such things have resulted from the Charters, but there is less possibility of such a development in a constitution as it looks to the totality of a system for balancing of interests and their harmonization. This is not to diminish the contribution of the Human Rights Charter. The goal of Charter is surely different from the goal of a World Constitution. The Charter has its own special role , including the one to develop consciousness on the rights incorporated in the charter, which cannot be catered by the Constitution at the present stage. The regime of Human Rights in a Constitution has slightly different role, as one has to give due weightage to its workability in the system.

The constitutions worldwide have been excellent piece for development of Human Rights. Constitutions unlike in the past are not merely concerned with the organs of government but carry a value system within them . For instance the Indian Constitution is a living example how a value system has been developed with the contribution of the bar and bench. Such could also be the idea of a World Constitution. It will help Human Rights to grow in a proper perspective. As a Constitution may be considered by the people of the world as their own document, there may be greater acceptability.
A criticism leveled is that the Human Rights Organizations take up issues in vacuum Such behaviour on the part of organizations is acceptable as long as it is a body responsible with the building of concepts on Human rights , and not concerned with a judicial functions. An organization has to take up causes in order that the society go forward. So, Human right organizations have black listed several activities within many countries of the world. However many nations object to this pattern on the ground that these organizations with American values do not appreciate their stand .For instance many countries felt that Human Rights organizations and the USA have not been appreciative of their role in the Human Rights angle specially prior to 11 September . It is their contentions that America did even a U turn on Human rights ideologies as perceived pre 11 September 2001. Such charges are bound to arise as Human Rights have to develop as a cohesive system . Such development is more likely to be balanced under a World Constitution . Thus Human Rights regime will be stronger if both the Human Rights Charter stands as well as at least some essential individual rights are consigned in the World Constitution.. The World Constitution, can thus naturally have one part devoted to Fundamental Rights and Duties of an Individual. This is not to claim that the Fundamental Rights in a World Constitution cannot replace the Human rights Charter over a long period of time.
12) A World Constitution can protect people of a country from genocide or self annihilation or destructive policies followed by one’s own country itself.
In a wider context one can raise the question whether a country can pursue a policy that will lead to self- annihilation . Just as an individual has no right to take his own life arbitrarily, one can say afortitior a country has no right to self annihilation. Such philosophy can be easily deduced from a World Constitution especially through interpretative approaches by the constitutional court. Such problems may raise its ugly head in the future. It is time to enact a World Constitution, so that in course of time it develops constitutional principles to protect the people against measures of their own government.
13) A World Constitution may aid in building International System .
Prisoners accused of crimes against humanity or charged for Human Rights violations often claim that they are victims of an unfair system. Besides the two systems of Common Law and Continental Law, there are other systems that often are neglected in international procedures. Hence it is necessary as far as possible to develop an International system and compatible jurisprudence. This system will have to evolve out from the various claims and demands made on the international community. The World Constitution can enhance this development. Constitutions world wide present excellent documents around which concepts can be built. Hence a World Constitution may help in bring about this growth of an international system , which could possibly be a hybrid of all convenient systems.
The trial of Milosovic is interesting. His objections to the jurisdiction of the trial court cannot be easily overlooked. Such is the feeling of some people and countries that their race psychology, their trial system, their defences are not taken into consideration. It may not be possible to satisfy all. However as early as possible , the world must build an international jurisprudence to answer their objections of unfair trial. For in that case a trial can be considered as fair when it is in consonance with the international norms and procedures. A World Constitution can give a boost in building international system.
14) A World Constitution may provide a basis for the Rule of Law.
Today there is a lot of discussion on the rule of law. The German Constitution provides for the Rule of Law .Art. 20(3) states, ‘The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.’ Further Art. 1(3).states, ‘The following basic rights shall bind the legislature, the executive , and the judiciary as directly applicable law.’ Similarly the World Constitution can have a few articles devoted to the principle of the rule of Law. Thus the rule of Law may have a sounder basis in International regime.
15) A World Constitution can foster the growth of International Constitutionalism.
Just like a country’s constitution which besides being a legal document also fosters certain values contained in it, certain of those values from the national angle, so also enacting a World Constitution will foster certain values needed in the growth of a global community. Constitutions serve in building cultures. The concepts and doctrines involved will give an impetus to the People of the World to live as an international community rather than merely as nations. So the document is bound to foster the growth of International Constitutionalism, just as constitutions today foster nationalism and constitutionalism within a country.
16) A World Constitution can bring a sense of equity in world justice system
Very often there is a feeling that the International Law is the product of the developed countries and hence does not cater to equity. With the World Constitution, one can expect the principles of equity to be built intrinsically in the constitutional system in due course of time by judicial interpretation.
17) A World Constitution may provide for global security as world peace is an internal (intrinsic) constitutional matter.
Global security as well as world peace will be an intrinsic issue for a World Constitution rather than an external issue. As such the Constitution’s real test will be on providing a global security not merely to the Nations but the Peoples of the World. Evolution of constitutional principles with a totally new approach can be expected, as they are not bogged down with notions of national sovereignties.
18) A World Constitution may help the growth of new concepts from Nationalism to Internationalism.
The World Constitution will require the broadening or extension of concepts that exist in the various national laws today to go beyond their borders. The concept of responsibility, accountability , etc that stand confined to the borders of the country , will acquire wings to fly to international arena. This will lead to the growth of new jurisprudence to enlarge the concepts existing at national level to suit the global canvas.
19)A World Constitution may help the growth of Environmental Law.
Environmental Law requires a sounder basis as national sovereignties can be barriers for its full growth. For instance to apply the doctrine of escape one may easily consider it if within ones territories. By extending the concept of State to include the global community, the same principles known to the environmental law under various systems can be easily applied. So Environmental Law which by its vary nature is international in form, as environment does not recognize national boundaries, will get a boost with the World Constitution.
20) A World Constitution can assure nations of their territorial integrity to some extent.
The document can assure nations that their territories will be protected as the emphasis is on the rule of law to bring political change. Gradually, the World Constitution may have to provide directly or indirectly criteria or system for recognition of new States as well as provide institutions and procedures that will look after these matters. It may have suitable conciliatory , mediatory and adjudiacatory bodies that will enable to carry this role.
21) A World Constitution can permit a limited use of the principle of lex injusta non est lex.
The supporters of Natural Law have used the principle of lex injusta non est lex. However, it has been criticized as being vague . The Nuremberg and other such trials are a reinforcement of the principles of Natural Law. In a World Constitution a minimum of Natural Law elements such as right to life can be expected to be assured to every individual in the world. Hence a minimum of Natural law morality can be included as positive law in a World Constitution .
22) A World Constitution may provide an anchor to the Foreign policy of many smaller countries.
At present many smaller nations are compelled to rope their foreign policy to the super powers and whenever the super powers tilt their policy, the smaller nations have to follow suit. Hence there is no stability to the smaller countries to chart out their own foreign policy. With a World Constitution, it may be possible for smaller nations to have their foreign policy to some extent anchored to constitutional principles. Thus they can secure a certain amount of dignity rather than always hang on to political patronage.
23) A World Constitution may help in controlling arms race and avert future wars.
A World Constitution in the long run is expected to incorporate principles and values, which are meant for the control of arm race, and to avert future wars. Thus one can expect a regime on control of arms of mass destruction to develop within the regime of the World Constitution.
24) A World Constitution may help the growth of a more realistic jurisprudence of war.
Though in a bilateral war there are two parties to the conflict, even in such cases there are several other parties whose rights have to be taken into account. The war in Afghanistan has brought to the focus , thanks to the media, the fact that there are several parties affected by war. For a proper assessment in future of the cost and damages of war, all the parties affected will have to be taken into account. The costs involved have to be worked out into the terms of human suffering in short and long term effect. It is no longer safe ,with so much focus from the world media, to play the war game on the basis of hurt national pride and dignity, irrespective of the cost to be paid in terms of suffering of innocent humanity.
25) A World Constitution may coordinate to provide for criterion , or criteria for identifying rules of international law.
Today international law lacks criterion , or criteria for identifying rules of international law. Dias writes, “ that whereas the courts of a municipal order appeal to the same criterion, or criteria, by which to identify ‘laws’, there is no co-ordination in the ways in which rules of international law are identified. There is no single criterion of identification, because there are unrelated sets of tribunals, each of which identifies international law differently. There is, first, the International Court of Justice, which identifies its rules with reference to art 38 of the Statute of the International Court. Paragraph (1) specifies treaties, custom, general principles of law, and, subject to art 59, judicial decisions and writings of jurists. Paragraph (2) empowers the Court to decide ex aequo et bono if the parties agree. There are other international tribunals, such as arbitration tribunals, which are not bound by the Statute of the International Court. They may, and usually do, resort to much the same sources, namely, treaties (especially the treaty setting up the tribunal) custom, general principles of law, judicial decisions and writings of jurists.” [96] This problem is expected to be reduced considerably with the World Constitutional Law , which when fully developed must tend to provide criterion or criteria for identifying rules of International Law.
26) A World Constitution may develop the doctrines concerning unconstitutionality which may give a sense of justice in the field of International Law.
Once the Constitution is firmly established with the setting of Constitutional Court, there will be a high probability of development of doctrines of unconstitutionality. This growth can be planned in lines to the development for instance in the Indian Constitution on the issue of unconstitutionality. Such a growth will put restrictions even on the Legislature so that the rule of Law and sense of justice prevails. For instance the Basic Structure Theory in India has put breaks on the possible arbitrariness of even the Legislature. Once the World Constitution stabilizes it can be the endeavor of the World Constitutional Court to develop suitable doctrines as evidenced in some constitutions of the world.
27)A World Constitution can provide a kind of guarantee to other democratic constitutions.
Provision can be made in the World Constitution, to permit national democratic constitutions to take umbrella protection of the provisions of the World Constitution, against arbitrary changes in their constitutions by internal usurpers within the country. For instance a democratic country ‘A’ should be permitted in order to safeguard its democratic constitution against arbitrary change , to seek the protection of special article in the World Constitution. There could be a Schedule in the World Constitution where several national constitutions interested to seek such protection could be listed. Thus any change, which appears to be arbitrary in the national constitution, could be made justifiable before the World Constitutional authorities, if the country has opted for that treatment. However as dictatorial constitutions too may seek such a protection, the inclusion in the Schedule should be a carefully controlled judicial exercise protecting only democratic form of government. It is to be noted that a World Constitution itself may not be based on a democratic set up especially at the initial stages. The emphasis in a World Constitution is on fairness and justice.
28) A World Constitution can change the attitude of municipal courts towards international laws.
As observed municipal courts in some countries are breaking new grounds when municipal laws are challenged on the basis of injustice etc by developing concepts such as due process and so on. However many times the municipal courts are reluctant to apply it with respect to municipal laws which violate clearly international norms and are unjust. They adopt a hands off attitude. This may undergo a change with the acceptance of the World Constitution.

(D) STAGES IN EVOLUTION OF A WORLD CONSTITUTION
The following stages are suggested here in the process towards formulating a World Constitution. The suggestions are tentative and not based on any sound fundamentals. Rather they may serve to motivate a debate on the subject. The stages suggested are:
1. Debate on Constitutional Concepts.
2. A Constituent Assembly or an International Convention .
3. Signatories to the Constitution.
4. Formulating the Preamble
5. Setting up Adjudicatory System
6. Establishing a World Parliament
7. Setting up a Small Executive for Enforcement .
8. Charter of Fundamental Rights of States.
9. Fundamental Rights and Duties of Individuals.
10. Provisions for Amendment and Review .
11. Schedules.
12. Issue of Constitutionality .
1)Debate on Constitutional Concepts:
Constitutional concepts can be easily developed as a first step towards building a World Constitution. A debate among historians, political scientists, philosophers, and legal experts will produce an abundance of doctrinal theories, and concepts that will facilitate the formulation and working of a World Constitution. Scholars can easily take up this first step, each contributing in his own way.
Once the concepts have sufficiently developed by the political scientists and legal experts , it is easier to make them acceptable to the larger community. Thus at the stage , when the need arises one can work towards the global constitution , as the tracks have already been laid down by abundance of rich concepts. Hence, the first step is to work out the concepts at the global level and then follow it by Constituent Assembly or an International Convention.
The question may be raised: Why to debate a World Constitution among scholars, and not leave it to the international official forums? As the building of concepts and constitutional jurisprudence is a touchy affair bordering on national sovereignty, it is better that it is restricted to legal scholars. The experience of international relations has shown that each country keeps its narrow national interests in priority and then works towards global regimes within those parameters. Perhaps, few would like to argue the opposite, that no nation will be interested in drafting a biased document that can at some future stage be used to its own detriment. This argument holds water only if the Constitution is of such a nature that it is neutral as to the identity of any nation in the globe. In discussing a World Constitution, it is better to keep the involvement of international official forums for the last stage if at all, in order that ideas may flow freely. The efforts of legal scholars will be more effective if they approach the subject from the global angle with the ideas of justice in their mind. Usually legal scholars approach issues from a different angle when they hold a brief for their country. The hard bargaining at some of the international conferences is a proof , that such an atmosphere is not conducive to evolve ideas for a World Constitution. It may be a fact that one may have to finally to go through such a process
2) A Constituent Assembly or an International Convention.
One may have a Constituent Assembly with representatives of the globe which may be a difficult proposition, or just a Constituent Assembly of academicians, lawyers and judges, collected from a hue of several world systems. The agglomeration of such set of scholars will be an ideal body to debate and formulate a model World Constitution, rather than a representative body. They can approach the subject with less national bias. As they come from various jurisprudences, they can try to attempt to evolve an efficient system. There is a need to develop an international legal practice and procedures which is consistent with the requirements of a global community. This will reduce the criticism of the injustice due to a bias of the system. One may criticize the move that such a step does not involve a democratic process. The answer to this criticism is that often-democratic documents emerged from the pens of unrepresentative bodies.
In the alternative instead of a Constituent Assembly one may settle for an International Convention. Then in what sense does one expect a World Constitution to be different from other conventions? The idea of a convention is that it is based on agreement. Hence one may argue that it is not applicable unless one is a signatory to it. The very fact that the present document is labeled as a Constitution , it is clear that there is no such option. For instance the Constitution could have a preamble stating that the power flows from the People of the World and not from any drafting committee or convention or from the signatories to it. As discussed earlier a Constitution may have extra legal origin or even illegal origin. The point is that the document should be de facto acceptable by the world community as a Constitution .
Earlier before the rise of nationalism over regionalism and feudalism, there were doubts as to the right of the national government to bind the individual and this were conceptualized through theories like social compact. We are at the same stage today, when the rise of internationalism raises the questions whether nations can be bound by a certain rule of law. The answer should be in the affirmative. If the state has a right to bind the individual for the common good of the nation, then a fortiori today, the world has a right to bind the nations for the security of the international community. However such a document must have the elements of justice, rule of law etc. in order to make it acceptable to the world community , as that is the raison d’etre for its very existence .
3) Signatories to the Constitution.
The following are merely suggestions. Members of the Constituent Assembly could sign the document. Another option would be after the draft is ready as an educative value, a mass campaign could be undertaken collecting signatures world wide with the help of NGOs and educational institutions. Such signatures could be archived in an institution. That may give a better credibility and sanctity to the document. Thus it will make the document as assented by the Peoples of the World.
If the Constitution results from a Convention, then it could be signed in the manner of other international conventions with ratification if necessary. However it is clear that the document is applicable to the world community irrespective of signature or ratification. That process could be considered as initial process that will take the document further than agreement and ratification, into the realm of a Constitution.
4) Formulating the Preamble
The Preamble of the Constitution can help in developing certain value system. In India , the Preamble starting with “We the People ”, shows that the power flows from the people. Such could be the Preamble for a World Constitution, where the power will flow from the peoples of the world irrespective whether the document originated from a Constituent Assembly of Scholars or Constituent Assembly of World Representatives or even if it resulted from a Convention. [97] The Preamble can make it clear that it is Peoples Document binding on all nations and groups in the World.
5) Setting up Ad judicatory System

World Constitutional Court World Supreme Court.
World Conciliatory and Mediatory Courts
National Supreme Court

The judiciary will have to play a prominent role in a World Constitution. One model suggested here is to have a World Constitutional Court. The Constitutional Court can be specially reserved for Constitutional issues, including the interpretation of the Constitution and issues of unconstitutionality. It may be necessary at the initial stage to restrict recourse to this court to a minimum area possible in order to prevent large scale erosion of national sovereignties. However if the Constitutional Court in course of time develops confidence of the people then there can be enlargement of its jurisdiction. Also the Constitutional Court can lead to growth of constitutional jurisprudence. Thus in due course of time one may be able to take care of laws and orders which may cause genocide in any country of the world , by declaring them unconstitutional.
Perhaps with a Constitutional Court one may have a World Supreme Court. This could be the Court to try cases under its original jurisdiction of far reaching consequences as well as appeals from the National Supreme Courts. In fact under the jurisdiction of the Supreme Court one may have courts set up in every nation either under national jurisdiction or international jurisdiction. Even if the court is set under the national jurisdiction, the philosophy of international court could dominate. There could be some common rules on the composition and so on , governing these national courts.
A question may be raised at this stage. Should the existing International Court of Justice be incorporated in the World Constitution to serve as International Constitutional Court or World Supreme Court. ? There will be some difficulties with the present set up and some articles of the Statute of the International Court of Justice may have to be modified. There are some advantages in giving a role to the International Court of Justice. Hence it will be a job of weighing the advantages with the disadvantages
The ad judicatory body under the World Constitution may be faced with unique problems , such as settling disputes between two nations . For such issues one may require an ad judicatory body with a special expertise unlike the requirements of the present courts. One may provide with a forum of experts who will give fast and interim decisions. This forum may be like a conciliatory or mediatory body, but whose decisions are categorized as binding on the world community. The World Conciliatory or Mediatory Court could be a body filled with jurisconsuls coming from different jurisprudential systems of the world, who will aid the Conciliatory Court to arrive at a decision. From this World Conciliatory Court there could be a formal appeal to the World Supreme Court.
The World Constitutional Court , the World Supreme Court and the World Conciliatory and Mediatory Courts could be assisted by assessors who are employees in the respective organizations to assist the judges in the judgment. They could be asked by the judges to provide with opinions on certain points of facts and law. The assessors could be selected to represent the different systems world wide.
6) Establishing a World Parliament
Perhaps a World Parliament can wait till a later date for further constitutional developments. It would be better to have in place first the adjudicatory system. The difficulty with the World Parliament will be about the nature of representative body. Using the juridical equality of nations, one may suggest one nation, one vote. However as is evidenced for representatives’ bodies to function soundly, one needs a culture. Mere number majority can sometimes lead to oppression. Hence one may have to develop World Parliament cautiously and in stages. One may need first a legislative organ with regard to Amendment or Revision of a World Constitution. However this can be conferred on a body like the U N for some time under restricted conditions , where the Security Council does not enjoy a special role
7)Setting up a Small Executive for enforcement .
The question on the World Government may have to be kept last in the Constitution. Even at the final end one may have to be satisfied with a small body like the Security Council .A World Government may be meaningful only if a World Parliament stars functioning. However these two organs may not be necessary to begin the constitutional journey.
8)) Charter of Fundamental Rights of States.
Since for the World Constitution countries are entities, it may be necessary to confer certain Fundamental Rights on States . These rights will assure that the countries enjoy certain amount of security. In the present century a country should be free from global terrorism. It also must be assured that processes that are a result of armed conflicts do not change its boundaries. So the Constitution can provide for some Fundamental Rights to the States. If such a charter is included, the adjudicatory bodies under the World Constitution will be able to play a role in protecting these rights.
Imagine that State’s right to preservation within its territorial boundaries is assured. Then it will be the duty of Constitutional adjudicating system to see that these are not altered by force. The adjudicating body may be required to use certain tests when socio-political conditions may require a change in the boundaries. Hence one can presume that under this system de jure recognition may grow in which the adjudicatory bodies too will have a role to play.
9) Fundamental Rights and Duties of Individuals.
The question that can be posed is whether there is a need for such provisions of Fundamental Rights, on the face that the Human Rights Charter goes far and beyond the Constitutional scheme? One realizes that there is a Human Rights Charter , that is comprehensive. The Fundamental Rights if guaranteed to an individual cannot go beyond the Human Rights Charter , in quantity or quality of rights conferred. However minimum such rights are required to be assured in the World Constitution, which will be obligatory on all nations and defacto groups and organizations recognized or not as legal entities. Besides once incorporated into the World Constitution , the rights will be subject to constitutional dynamics.
10) Provisions for Amendment and Review.
The World Constitution even if the document is kept within a minimum size , will require provisions for Amendment and perhaps also for review. This will be a difficult issue when the ideas on World Parliament have not crystallized properly in the document. But a question that can be posed is whether the U N General Assembly can serve for sometime at least for the purpose of Amendment or Review of the World Constitution.
However there are two strong objections on accepting the proposition. The first is that all the nations are not members of the United Nations and hence it does not contemplate representation to all the countries of the globe. The second objection is the importance given to the Security Council. However as long as there is no alternate institution , the U N may function as the World Parliament for Revision and Amendment. Another alternative is to provide that the General Assembly can Amend or Review the Constitution under conditions provided in the World Constitution itself . Each State of the U N could be provided with one vote without any discrimination. Even in this case, the body is not representative of world community as it leaves some countries and groups outside, yet it may be a suitable solution. For a more effective method the World Constitution could prescribe the place for sitting of this august body as to differentiate it from the U N.
The question that can be raised is whether some parts of the World Constitution can be put beyond the power of Amendment. For instance an article could define the limits to Amendment. Also one could have some principles incorporated in the Constitution, which will permit the World Constitutional Court to develop doctrines on limits of amendment, something like the basic feature theory in Indian Constitution.
11) Schedules to the World Constitution
The World Constitution could have Schedules. Probably one Schedule could list important provisions, articles, sections of some conventions, treaties, etc, which could possible be given an obligatory force and made applicable to all nations and Peoples of the World . Once incorporated in the Schedule they could be considered to have an obligatory force on the basis of the World Constitution. Another Schedule as discussed earlier could list the Constitutions of the World that would like to have an umbrella protection to protect their democratic set up against usurpers.
12) Problem of Unconstitutionality
The World Constitution may have to provide for declaration of unconstitutionality or review of Constitutionality .
(1) If any municipal legislation is violative of the principles incorporated into the World Constitution, one could argue in favour of declaring it unconstitutional. For instance the World Constitutional Court could be permitted to declare such an statute as unconstitutional. We have seen today that certain Sovereigns once deposed have been tried for gross violation of Human Rights. So extending the argument, would it not better if the legislation itself is declared unconstitutional at the earlier stage? As a kind of compromise the area of such unconstitutionality could be reserved to a very narrow sphere with appeals being restricted as per the modern political exigencies. The declaration of a municipal statute as unconstitutional even if the decision has no strict enforceability, is bound to have a salutary effect. For instance, the Nuremberg trials would have a better basis, if the orders of the dictator were declared unconstitutional as per the world conscience at an earlier stage. That would also give the people a better right to revolt against authorities.
(2)One can argue that a very similar approach could be adopted to executive orders, which have a rather general basis and hence have a far reaching effect. For instance suppose a military leader gives orders to carry out a genocide, such an order could be made justifiable in the World Constitutional Court.
(3) One can argue for a very similar treatment to unconstitutional orders issued by terrorist or other groups, who do not enjoy the status of a country. Their orders too should be justifiable before the World Court.

(E) CONCLUDING REMARKS
The post 11 September events indicate that there is a need for a complete change of mindset on certain traditional jurisprudential concepts to suit the conditions of the global village. One has to bring in concepts and definition in keeping with the present situation. As the world is changing fast this has to be a conscious and serious exercise.
International politics at the turn of this century does not seem to be capable of providing stability to the world order. Also the traditional foundations of international law, such as conventions, treaties, customs etc. which satisfactorily provided stability to the world earlier , appear to be threatened with the rise of outfits which operate sometimes at multi-national or trans-national level. Hence there is a need to look out for better obligatory documents which bind all.
Much was expected from the League of Nations but this new constitutionalism failed to take roots. The U N is continuing in the struggle to provide some kind of stability to the world order. While its work is commendable and cannot be dismissed , it needs a lot to be done. The failure of the U N could mean the end for the human race. So it appears that the search for a system for the world order has to continue.
Working on traditional concepts known to jurisprudence but extending it a little to the international scenario, a World Constitution could probably provide for a system to a world order. A constitution as is well known may have an extra legal origin. Also a World Constitution can have an obligatory effect on all the Peoples of the World. In fact the document can be proclaimed on behalf of the Peoples of the World. If the World Constitution is drafted with elements of justice and fairness , it can find acceptability in the world community. In course of time it can be expected to meet Kelsen’s requirements of minimum effectiveness. Besides, with a World Constitution one can expect an evolution of doctrines and principles which can become instruments in bringing in peace and providing stability to the world order.
There are other advantages to a World Constitution A World Constitution can make international politics to be amenable to the Rule of Law. Also even the U N can function better with the aid of an instrument like the World Constitution. One could select a constitutional model which would permit the U N to grow from strength to strength. The World Constitution too can grow under the changing interpretations as per the political needs of the world , as there is some kind of intrinsic flexibility in a constitutional document. Using the traditional concept of constitution one can take advantage of several constitutional development observed in the World. Besides it is bound to foster international constitutionalism.
Today there is a struggle on the part of some international courts to extend their jurisdiction on offenders who commit crimes against humanity with impunity. Such courts will have a better stand under the umbrella of a World Constitution. Thus the arm of diverse international tribunals can be strengthened under the doctrinal evolution of a World Constitution .

BIBLIOGRAPHY
Allen C.K. , Law in the Making , Seventh Edition, Oxford At The Clarendon Press , 1964
Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967.
Basic Law For The Federal Republic of Germany ,Press and Information Office of the Federal Government, Bonn, 1998.
Berman, Harold, J, ed., Talks on American Law , Voice of America, United States Information Agency, Washington, revised edition ,1973.
Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974.
David Rene, and Brierley, John, E.C. Major Legal Systems in the World Today, Stevens & Sons , London, 1978.
Dias , R W M ,Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994.
D’Souza, Carmo, Legal System in Goa (Vol. II) , Laws and Legal Trends(1510-1969),1995.
Hingorani, R.C., ed., International Law Through United Nations, N.M. Tripathi Private Ltd., Bombay , 1972
Iyer, Krishna, V.R., The Dialectics and Dynamics of Human Rights in India, Eastern Law House, Calcutta and New Delhi,1999.
Jacobs, F. G., Cracknell’s Law Students’ Companion, No.9 Public International Law, Butterworth & Co,(Publishers) Limited, London, 1968.
Pound, Roscoe, Jurisprudence ,Roscoe, Vol. I, St Paul, Minn., West Publishing Co.1959
Rajan, M.S., The Expanding Jurisdiction of the United Nations, N. M. Tripathi Private Ltd., 1982.
Rosenne, Shabtai, The World Court, Oceana Publications Inc,, Dobbs Ferry, N.Y.,1973
Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996.
Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973
Thesing, Josef, ed., The Rule of Law , Konrad-Adenauer-Stiftung, 1997.




[1] It is interesting to see the relationship of the Concept of Navigation and Discovery among the Portuguese in the sixteenth and seventeenth centuries and the laws that they proclaimed, see D’Souza, Carmo, Legal System in Goa , Vol. II, 1995,pp.8-17. For Concept of Idolatry and Immorality among the sixteenth century Portuguese in the State of India and how it effected laws, see pp.19-20 .For Concept of Slavery and how it affected laws even in the nineteenth century , see pp. 224-25. Also to see how wrong perceptions on natives affected laws in the early twentieth century ,see pp.226-228.

[2] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg.68.

[3] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg. 68.

[4] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg. 69-70.

[5] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi, 1967, pg.260.

[6] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg. 149.

[7] Strong, C.F., Modern Political Constitutions, edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 ,pg.29.

[8] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973,pg.30.

[9] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974, pgs. 40-41.

[10] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974, pgs.45-46.

[11] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg 53.

[12] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, pg. 17

[13] ibid.

[14] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pgs. 242-243.

[15] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’ pg. 24.

[16] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’ pg. 25 .

[17] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’ pg. 26.

[18] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, pg 8-9

[19] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997. Essay of Werner Birkenmaier, ‘Rechtsstaat’- The Rule of Law in the Federal Republic of Germany,pg.58

[20] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’ pg. 25.

[21] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’ pgs. 26-27.

[22] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg. 243.

[23] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997, pg. 8.

[24] Allen C.K. , Law in the Making , Seventh Edition, Oxford At The Clarendon Press , 1964,pg.61.

[25] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg.308.

[26] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974, pg 309-310.

[27] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pgs. 310-311.

[28] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pgs. 311.

[29] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg.207.

[30] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg.218.

[31] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 ,pg,10.

[32] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 , pg. 13.

[33] Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996, pg.84.

[34] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 , pg. 13-14.

[35] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 , pg. 16.

[36] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pgs.19-20.

[37] See, Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 , pg. 13.

[38] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973, pg .38.

[39] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973, pg .38.

[40] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973, pg.39

[41] Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996, pg.84-85.

[42] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973,pg.30 .

[43] Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996,pg. 84

[44] Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996,pg. 85

[45] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 ,pg.54.

[46] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 ,pg.54.

[47] ibid. pg. 55.

[48] ibid. pg.55.

[49] See, Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 Pg.57-58 .

[50] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973,pg 58

[51] Thesing , Josef, ed. , The Rule of Law , Konrad-Adenauer-Stiftung,1997,Essay of Werner Birkenmaier, ‘Rechtsstaat’- The Rule of Law in the Federal Republic of Germany, pg.62.

[52] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 Pg. 59-60

[53] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 Pg 63.

[54] The Rule of Law,…Essay of Werner Birkenmaier, ‘Rechtsstaat’- The Rule of Law in the Federal Republic of Germany, pg.59.


[55] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg.36.

[56] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994.pg.495.

[57] Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996,pg. 54

[58] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994.pg.496.

[59] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg .370.

[60] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg .370.

[61] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg .370-371

[62] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg.371.

[63] Allen C.K. , Law in the Making , Seventh Edition, Oxford At The Clarendon Press , 1964, pg.60.

[64] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994 ,pg 217
[65] ibid pgs.217-218.

[66] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg .496

[67] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg 218.

[68] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg. 497.

[69] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, 218-219.

[70] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pgs. 274-275.

[71] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974, pg. 275.

[72] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974, pgs. 275-276.

[73] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg 497-98.

[74] Salmond on Jurisprudence, Twelfth edition by P.J. Fitzgerald, London, Sweet & Maxwell,1996,pg. 56.


[75] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994.pg.495.

[76] Allen C.K. , Law in the Making , Seventh Edition, Oxford At The Clarendon Press , 1964,pg 93.

[77] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg.496.

[78] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg.104.

[79] R W M Dias , Jurisprudence, Fifth edition, Aditya Books Private Limited, New Delhi, 1994, pg. 106.

[80] Bodenheimer, Edgar, Jurisprudence, revised edition, Harvard University Press, Cambridge Massachusetts, London , England,1974,pg.309.

[81] Strong, C.F., Modern Political Constitutions , edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973, pg 45

[82] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pgs. xi-xii.

[83] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg 1.

[84] Iyer, Krishna, V.R., The Dialectics and Dynamics of Human Rights in India, Eastern Law House, Calcutta and Delhi, 1999

[85] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg. 9.

[86] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg.149.

[87] Iyer, Krishna, V.R., The Dialectics and Dynamics of Human Rights in India, Eastern Law House, Calcuta and New Delhi,1999, pg.151 .

[88] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg.241.

[89] Jurisprudence, Roscoe Pound, Vol. I, St Paul, Minn., West Publishing Co.1959, pg 457.
[90] ibid. pg.459)

[91] Strong, C.F., Modern Political Constitutions, edited with a New Introduction By M.G. Clarke, The English Language Book Society and Sidgwick & Jackson Limited, London, ,1973 , pg. 19.

[92] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg 4.

[93] Bailey, Sydney, D., The General Assembly of the United Nations, Wiley Eastern Private Ltd., Publishers, New Delhi,1967, pg. 6.

[94] Iyer, Krishna, V.R., The Dialectics and Dynamics of Human Rights in India, Eastern Law House, Calcutta and New Delhi,1999, pg. 147.

[95] See D’Souza, Carmo, Legal System in Goa. Vol. II, pp. 8-18, and pp.93-96. In a changing scenario , the Portuguese legal regime collapsed on the face of new developments. The Portuguese control of the eastern Seas was on the basis of political power as well as on the peace treaties. With the advent of other European powers and on the failure of the gunboat diplomacy, the Portuguese Sea Empire crumbled. The Indian states that were often signatories to the Peace treaties, did not comply with the clauses of the treaty as per the Portuguese viewpoint. It was not felt necessary by the Indian rulers to adhere to the treaties signed , as they looked on those agreements as political compulsions. They did not feel a “ sense of obligation”. Hence many Eastern historian categorized the Portuguese behaviour at the seas as mere loot and plunder. It is to be noted that the Portuguese had established a legal regime to their satisfaction .They had declared unilaterally a Code of the Seas i.e The Ordinations of India . The whole system was based on the foundation of command, agreement , and peace treaties. However the regime was sustained as long as Portugal enjoyed political power, may be a part of the gunboat diplomacy .To the credit of the Portuguese they had tried to secure that benefit with a document though unilateral i.e. The Ordinations of India. However the Eastern world did not feel obliged by a unilateral document. Even though the Indian sovereigns accepted some provisions in peace treaties, soon later they did not feel compelled to give credit them , once the political might backing behind it was destroyed.
[96] Dias, R.W. M. Jurisprudence, fifth edition, 1994 , Aditya Books Private Limited , New Delhi, 1994,pg 496.
[97] The preamble of the Charter states “ WE, THE PEOPLES OF THE UNITED NATIONS, DETERMINED