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.
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…