Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law-making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law-making and international institution-building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.