EJIL: Talk!

Professor Jeffrey Dunoff is Charles Klein Professor of Law & Government at the Beasley School of Law, Temple University. Professor Joel Trachtman is Professor of International Law at the Fletcher School, Tufts University.

In The Constitutionalization of International Law (“CIL”), Jan Klabbers, Anne Peters and Geir Ulfstein have produced a valuable addition to the burgeoning literature on international constitutionalization.  Their important volume presents an admirable overview of many of the major debates in this area as well as a distinctive vision of constitutionalization’s features and virtues.  In this short post we wish to highlight an important dimension of their argument; raise some questions about their analysis; and briefly outline an alternative approach to understanding international constitutionalization.

CIL’s account of constitutionalization is notable for the way that it subverts many standard international law dichotomies.  While it is difficult to summarize their subtle arguments in a brief post, we might capture CIL’s constitutionalist approach by contrasting it with the vision of international law encapsulated in the PCIJ’s landmark Lotus decision. 

The Steamship Lotus, before its collision with the Boz-Kourt

Lotus famously held that “[i]nternational law governs relations between independent States.  The rules of law binding upon states therefore emanate from their own free will . . . .  Restrictions upon the independence of States cannot therefore be presumed.”  CIL’s version of constitutionalization turns virtually every element of these claims inside out.

First, Lotus both presupposes and reifies a state-centric world-view.  States are the primary subjects of international law; they are the creators of international rules, bearers of international legal rights and duties, and operators of international legal processes.  International law is hence centrally concerned with the reciprocal rights and duties of states.

In CIL’s vision of a constitutionalized international order, the state is no longer the primary actor on the international legal plane.  Read the rest of this entry…

Professor Jeffrey Dunoff is Charles Klein Professor of Law & Government at the Beasley School of Law, Temple University. Professor Joel Trachtman is Professor of International Law at the Fletcher School, Tufts University.

How should we understand international constitutionalism?  This question has many descriptive, conceptual, and normative components:  Is international legal constitutionalism concerned with rules or with institutions – with substance or with process?  Is international constitutionalism a European ploy to remake the world in its image, or to restrain the power of the U.S.?  Perhaps most importantly, does international legal constitutionalism suppress useful political discourse and contention, or does it establish the necessary conditions for productive global politics, and the necessary safeguards against government overreaching?

Our recent book, Ruling the World? Constitutionalism, International Law, and Global Governance (RTW) addresses these and related questions.  The volume examines constitutional debates at various sites of global governance, including the UN, EU, WTO and elsewhere, and analyzes commonalities and differences in these debates.  It also examines the relationships between international and domestic constitutional orders, the challenges of constitutional pluralism, and the puzzle of democratic legitimacy.   RTW explores the fundamental assumptions and critical challenges in contemporary debates over international constitutionalization and sets out a comprehensive framework for understanding these debates.

RTW‘s essays make clear that the answers to the questions can only be developed within specific contexts and in relation to specific constitutional provisions.  Constitutions are not received at Mt. Sinai, but are created by people with varying visions, experiences, and interests.  Moreover, because the state is not the exclusive unit either of social interaction or of governance, constitutional orders exist above and below the state, in accordance with the principle of constitutional subsidiarity.   It follows that constitutionalization is not a one-size-fits-all affair, and that constitutionalization at the international level will inevitably be different, in terms both of substance and process, from constitutionalization at any national level.

Our contribution to Ruling the World? (see here and here) urges a functional approach to international constitutionalism.  Read the rest of this entry…