“[I]t would be surprising,” David Kennedy said in his very perceptive contribution to this volume, “if the new [constitutional] order were waiting to be found rather than made.…If there is to be a new order, legal or otherwise, it will be created as much as discovered.” I felt caught in flagrante delicto because that was exactly what I had tried to show some ten years ago in an article titled “The UN Charter as Constitution of the International Community” – that we can rediscover a constitutional quality of the Charter that had been there right from the start but that had fallen into oblivion in the meantime. In the words of my article:

If the failed European Constitution of 2004 was a “treaty which masqueraded as a constitution,” the UN Charter is a constitution in the clothes of a treaty, because no other garment was available in 1945.

However, David Kennedy's skepticism is understandable. Whenever a rather small group of people claims to see something invisible to all the others, suspicion is well founded.