While the Nice Treaty cast a shadow over the Convention's work on the institutions and led to the project's first failure in the Brussels Summit, the war in Iraq cast shadows over the common foreign and security agenda. On the one hand, it proved the extent to which Europe is divided over substantive positions and over the means to act, particularly the resort to war. On the other hand, there is an increased popular sense that Europe should play a role (reflected in Eurobarometer polls, including one especially commissioned by Giscard). Article I-40 of the Draft Constitution on defence reflects that ambition. It remains to be seen whether this facilitates Europe to unite when it comes to giving foreign policy teeth in the form of a real and effective common ‘defence’ policy.

As with most other provisions of the Constitution, Article I-40 in the main builds on and consolidates the texts as we already have them in the existing Treaties, but at the same time, it innovates.

The government has the duty to promote the development of the international legal order, says Article 90 of the Netherlands Constitution. Although somewhat similar provisions occur in other constitutions, only the draft Constitution of the European Union contains an identical provision. This essay analyses the precise meaning of the constitutional duty in the Netherlands. It traces the history of the relevant provision and sketches how it developed from a provision on the use of peaceful means for settling international disputes into a general provision on the duty to promote the development of the international legal order. The meaning and content of the duty contained in this provision is distinguished by analysing the overlapping twin notions of abidance by versus promotion of international law, of international society and the international legal order, of serving international and the national interest, and by discussing the attributive versus the regulative nature of Article 90 of the Constitution. The case-law on this provision is discussed separately, and describes the development from reviewing the compatibility of state action with public international law to considering it a programmatic provision with limited justiciability.

In its dynamic function, focussing on promoting the development of an international legal order, the provision has a critical, exhortatory function; it does not regard actual facts, but is about desirable futures. It should foster discourse about the structural weaknesses in the present political and legal international order and should highlight the discussion on whether certain policy choices actually promote the latter's development.