ABSTRACT
Chapter 5 answers two fundamental questions about the founding of the ICC. First, it provides an explanation for the supranational constitutional structure of the court. Many of the most significant debates during the treaty negotiations for the ICC were defined by principled arguments about the purpose of the court, arguments that rested, I argue, upon distinct understandings of what the constituent power of the ICC should be. The supranational authority of the court was made possible by a discourse of post-national constituent power, one rooted in the idea of an “international community” and the collective subject of mankind whose interests should be protected by the proposed court. I trace how this discourse emerged in the 1990s and prevailed during the treaty negotiations in Rome against the objections of the US and other powerful states. The second question this chapter answers is why the US not only refused to ratify the Rome Statue but took steps to actively undermine the court after its creation. US hostility to the ICC reflects a deeper ambivalence in American political culture towards the international protection of rights, one rooted in the peculiar relationship between human rights and U.S. traditions of popular sovereignty. This tradition, which first emerges as a reaction to the civil rights movement, renders delegation of authority over human rights to an international institution deeply problematic and partly explains U.S. opposition to the ICC. In the conclusion, I discuss how the recent legitimacy crisis of the ICC in its relations with African states has its roots in the constitutional politics of its founding.
