EJIL: Talk!

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. This post is adapted from “The International Legal System as a Constitution” in: J.L. Dunoff/J.P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge UP 2009), pp. 69-112

International lawyers have often construed international constitutionalism as an offspring of the institutionalization of international law. An international constitutionalism would be able to draw the conclusion from the increasing institutionalization of the international realm by applying principles known from domestic constitutional law to the international system, resulting in a universal Kantian “state of law,” away from the “state of nature” or anarchy of international relations. In the same vein in which a constitution unifies the domestic polity in one legal superstructure, a developed, institutional reading of international law would unify the international community in one coherent constitutional structure.

 Today, this institutionalist reading of international law has fallen prey, in a certain regard, to its own success. While an increasing institutionalization and organization of international organization can hardly be doubted, the general impression is one of fragmentation rather than constitutionalization of the international legal system. In other words, the diverse and divergent institutions fail to come under a single scheme; rather, the systemic character of international law seems threatened by a multiplicity of international régimes without obvious coherence. The constitutionalization of partial régimes appears as antidote rather than confirmation of the constitutionalization of the international legal system as a whole. Calls for a true constitutionalism that would put the different subsystem into order confirm this intuition.

The absence of a single world constitutional order, however, should not blind us to the ever-increasing relevance of international cooperation and concomitant legal regulation for individual human beings. International constitutionalism needs to be decoupled from the building of new international structures. Rather, what is called for is a constitutional mind-set (Martti Koskenniemi) or a constitutional reading of the international legal foundations on which today’s fragmentation of international legal rules rests. Rather than asking whether the constitutional structure of the Charter organs are sufficiently similar to those of the state, my piece reflects on whether and how the international legal order fulfils the background principles for a constitutional order in the constitutional tradition. If not, the resistance to international regulation will likely – and justifiably – grow, and the accommodation needed for international order will not be forthcoming. Read the rest of this entry…

Professor Gráinne de Búrca is Professor of Law at  Fordham Law School, and during 2009-10 is a Straus Inaugural Fellow at NYU Law School.  She was previously Professor of Law at the European University Institute and Lecturer in Law at Oxford University

One of the aims of Ruling the World?, the interesting collection of essays which Jeff Dunoff and Joel Trachtman have assembled, is to try to understand the increasingly common practice of referring to instances of international or transnational governance in constitutional terms.   What does the vocabulary of international constitutionalism signify, and what is it intended to mean?   They argue for clarity on this basic analytical issue, and propose an understanding of ‘international constitutionalism’ in functional terms.   International constitutionalism should, they argue, be understood to refer to norms which enable or constrain the production of international law.   Their account is entirely neutral (international constitutionalism as a process with no particular teleology) and resolutely functional, such that even their description of the normativity of international constitutionalism has an instrumental rationality. Thus they argue that international constitutional norms should be assessed according to “their ability to enable individuals and states to advance the international public policy goals that they aim to achieve”.

Neil Walker’s concern with international constitutionalism, on the other hand, is with the normative implications of drawing on the language of constitutionalism in the first place to describe the growth and mutation of forms of legal authority across the transnational domain.  The implicit suggestion here, contra Dunoff and Trachtman, is that the development of international constitutionalism is not a natural or a neutral process.  In other words, the decision to frame a development in the language of ‘international constitutionalism’ is a conscious and consequential one, given the symbolic capital of the discourse of constitutionalism and its deep domestic origins. A similar point has recently been made by Stepan Wood and Stephen Clarkson in their rather more sharply critical analysis of ‘supraconstitutional’ regimes such as the NAFTA (“NAFTA Chapter 11 as SupraConstitution“). Like Dunoff and Trachtman, they define international constitutionalism in functional terms but, unlike Dunoff and Trachtman, they do so by reference to what they describe as the function of supraconstitutional regimes in constraining and transforming domestic law and constitutionalism.  Like Neil Walker, they also emphasize the symbolic capital of constitutionalism in noting that almost all of those who use the language of constitutionalism draw on liberal political theory with implicit or explicit reference to concepts such as the rule of law, constraint of power, protection of rights and democratic deliberation.

Already here, amongst three recent sets of commentators sharing a similar analytical approach to the phenomenon of international constitutionalism, we see three different normative evaluations.   Read the rest of this entry…

In his post Nico Krisch raises some important points that allow for the clarification of some core ideas. I have little to add to the part of his comments that describe the  “right starting points” and “important insights” but would like to address and hopefully clarify some points that concern the “more problematic turn”. That clarification might not lead to an agreement, but it might help provide a deeper understanding of cosmopolitan constitutionalism and its connection to constitutionalism more generally. My comments will address first the connection between constitutionalism and “the dream of reason” (1)  and second the relationship between constitutionalism and the law and politics divide (2) and, very briefly (3) the claim that international law is different.  Read the rest of this entry…

Nico Krisch is Professor of International Law at the Hertie School of Governance, Berlin  

We tend to fill voids with what we know. When we are thrown into unfamiliar spaces, we try to chart them with the maps we possess, construct them with the tools we already have. Working with analogies, extending and adapting existing concepts, seems usually much preferable to the creation of ideas and structures from scratch, not only because of the risks involved in the latter, but also because of our limits of imagination.

When we try to imagine the postnational space, it is not surprising then that we turn for guidance first to the well-known, the space of the national. The postnational, no doubt, is unfamiliar territory; the shape of its institutions, of allegiances and loyalties, of influence and power, submission and resistance is – sometimes radically – different from what we are familiar with. In Ruling the World?, David Kennedy nicely points out how little we actually know about this space, and how much anxiety this can provoke.

The global constitutionalist project seems to rescue us from this anxiety, it appears as a promise to structure the global level in a similar way to what we know from home. It returns to us a feeling of agency in the face of external circumstances, of reason when confronted with an institutional morass created through power, path dependence or mere accident. And it bears the promise that key political values, such as rights or democracy, will not be neglected simply because we are talking about issues beyond the nation state.

When it comes to spelling out what this means, however, the constitutionalist promise often gets watered down. It turns into constitutionalism with a small ‘c’ , into a quest merely for some stronger rights protection and a few more judicial review mechanisms, all part of a process of ‘constitutionalisation’ without a clear end goal. Samantha Besson’s paper in Ruling the World? highlights the gap between such approaches and what she rightly sees as a much more demanding domestic tradition of constitutionalism, but she too is the victim of adaptive preferences. Because the strong unitary, hierarchical element in constitutionalism clashes with the fragmented, chaotic structure of global governance, she quickly reinterprets ‘constitutionalism’ so as to make it fit – as a softer, more accommodating, broadly pluralist notion. Normatively, this may point into the right direction (I have defended a pluralist position elsewhere too, see here), but the link with ‘constitutionalism’ as we know it becomes very weak indeed.

Glossing over the extent of the challenge would not be Mattias Kumm’s style. In his paper in this volume (see Mattias’ EJIL:Talk! post here) - the focus of my short piece – it certainly is not, for it sets him on a ‘revolutionary’ path and promises us nothing less than a ‘Copernican turn’ in thinking about constitutionalism. Read the rest of this entry…

Mattias Kumm is Professor of Law, NYU School of Law. He is currently Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization, Harvard Law School.

The greatest impediment to the understanding of the legitimacy, efficacy and coherence of  global public law is the tradition of democratic constitutionalism, at least if that tradition is imagined within a statist paradigm. It is simply not the case that global public law – the legal practices emerging under the UN Charter, the practices of the ICC, the ECHR, the WTO, or the contemporary conception of customary international law, which no longer mirrors the idea of quasi-universal state consent– are troubled by structural problems of coherence, efficacy or legitimacy of a kind that national law does not suffer from. Statist constitutional thinking distorts the description and assessments of legal practices in three ways. First, it drastically exaggerates the coherence, legitimacy and efficacy of domestic constitutional practices (call this “idealist distortions”). Second, it unilluminatingly casts a general cloud of suspicion over legal practices beyond the state that are imagined as fragmentized, deficient legitimacy-wise and burdened by problems of compliance (call this “faux realism”). Third, it tends to neglect the connection between domestic legitimacy and efficacy and the wider regional or global legal context in which these practices take place (call this “misguided separation”). The legitimacy and efficacy of national and transnational legal and political practices are much more closely connected then conventionally acknowledged.

The legitimacy of the practice of democratic constitutionalism depends in part on the how it relates to the wider legal and political world.  To illustrate the point: National democratically enacted “beggar thy neighbor” policies relating to, say, carbon-dioxide emissions are not legitimate, simply because they were enacted in a democratic process, ultimately authorized by a constitution authorized by “We the People” . If some Pacific Islands were to disappear as a result of global warming and its populations are uprooted at least in part because of domestic environmental decisions made by, say, the US, the US “beggar thy neighbor” decisions are not legitimate merely because they were supported by democratically accountable institutions under the US constitution: Externalities matter. Conversely, imagine a multilateral global climate change Treaty negotiated in Copenhagen enjoying widespread support from rich, poor, southern and northern states, but  suffering from the lack of support of one or two economically important hold-out states.  Now assume that a reformed more participatory UN Security Council Resolution enacted the substantive content of the Treaty as universal obligations, thereby imposing obligations on holdout-states that refused to give their consent to the Treaty: There are circumstances under which the claim that such an imposition of obligations on non-consenting states would be illegitimate because of lack a lack of democratic accountability would be implausible. The comparative advantage in terms of legitimacy might, under some circumstances, be on the side of global law.

 Similiarly, the efficacy of domestic constitutionalism is generally exaggerated. Think of the quotidian “underenforcement” of constitutional provisions (or adminsitartive or criminal provisions) on the one hand and the breakdown of civil order and civil war on the other. Law is a fragile thing, both inside and outside the state. Read the rest of this entry…