Two faces of a problem: sovereignty and constitutionalism in international law

At the end of an article about the concept of sovereignty in international law, I quoted Hans Kelsen and Wolfgang Friedmann. In spite of all their differences both legal scholars were strong supporters of an international constitutional order. It was, in fact, Friedmann who first produced a sketch of international constitutional law as a ‘new field of international law’. In the late 1920s, Kelsen referred to his time as a transitional period in the history of international law, and saw this character reflected in the ‘contradictions of an international legal theory which in an almost tragic conflict aspires to the height of a universal legal community erected above the individual states but, at the same time, remains a captive of the sphere of power of the sovereign state’. Almost 40 years later, Friedmann arrived at a very similar conclusion when he wrote: