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.

In CIL’s vision of a constitutionalized international order, the state is no longer the primary actor on the international legal plane.  Rather, as Anne Peters emphasizes, “[i]n a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community.”   As a result, constitutionalization transforms individuals from mere recipients or consumers of international legal rules into active agents empowered to participate in international law-making activities and to initiate judicial or arbitral proceedings to vindicate their rights (p. 161).  Hence, one way that CIL’s constitutional vision flips the Lotus worldview is that the state is decentered, and individuals are the hub around which international law revolves.  Notably, CIL’s focus on the individual is not the normative and methodological individualism that forms the basis for conventional economic thought, but a juridical claim regarding the relevant actors in international law. 

Second, Lotus presupposes a certain understanding of the sources of international law.  International legal norms “emanate” from the “free will” of states.  The Lotus world, in short, is a highly positivist world, where law is rooted in state consent.  Hence, international law can be ascertained and identified by examining the actual methods that States use to give effect to their wills, primarily through treaty and custom. 

In contrast, CIL’s constitutionalized world order includes many types of processes and forms of normative pronouncements that do not fit easily into the traditional categories of international law.  Behavior ranging from the informal efforts of international networks of civil servants to industry codes of conduct and private merchants’ lex mercatoria can be considered legislative, and the category “law” should be expanded to include “soft law instruments, non-legally binding agreements, or Memoranda of Understanding.”  In addition, CIL’s constitutionalized world flips Lotus’s positivist world based on state consent.  Although CIL recognizes the continuing relevance of consent, it also, as Jan Klabbers’ post emphasizes, opens the door to “law making by majority” and other forms of non-consensual law.   Jurisprudentially, then, CIL’s constitutionalized legal order is a decidedly “non-positivist” legal order (p. 191).

The Other Type of Lotus

Finally, the Lotus presumption that states retain freedom of action unless there is a positive law restriction (what CIL calls the “presumption of non-law” (p. 116)) is flipped on its head.  As Klabbers notes, under a constitutionalized international order, the operative “presumption [is] that normative utterances are legally valid and legally binding, unless and until it can be demonstrated that they are not.”

Thus, CIL sets out a distinctive vision of international constitutionalization, one that in many ways is premised upon inverting the conceptual apparatus that supported Lotus. 

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For international lawyers, then, Lotus stands for a series of propositions about the nature of the international legal order.  For those with a more literary bent, the lotus will have different associations. 

17th century etching by Theodore van Thulden of Odysseus dragging crewmembers, against their will, away from the Island of the Lotus Eaters.

 In Book IX of The Odyssey, strong winds blow Odysseus’s vessel off course, toward the “land of the Lotus Eaters.”  Unsure of the reception his crew might find, Odysseus sends three crewmembers to explore the island.  The men are well received; the natives “did them no hurt, but gave them to eat of the lotus, which was so delicious that those who ate of it left off caring about home, and . . . were for staying and munching lotus with the Lotus-eaters . . .; nevertheless, though they wept bitterly I forced them back to the ships and made them fast under the benches. 

Then I told the rest [of the crew] to go onboard at once, lest any of them should taste of the lotus and leave off wanting to go home, so they took their places and smote the grey sea with their oars.” (Homer, The Odyssey, Book IX, lines 82-104 (Butler Translation)).

Juxtaposing the associations of these two understandings of Lotus raises a series of provocative questions: Might CIL’s inversion of the Lotus principles in the service of international constitutionalization tend to promote a form of idleness and lethargy in its readers?  Is it possible that the invocation of international constitutionalism acts as a narcotic in the sense of diverting relevant actors from the hard work necessary to advance the values that CIL associates with constitutionalization?  More specifically, might constitutionalization’s narcotic effects deprive those who consume it of constructive energy and free will? 

CIL employs a heroic conception of the power of law; indeed at one point CIL claims that “to the extent the future can be steered at all, it can be done only by means of the law” (p. 104).  And CIL’s constitutionalized international legal order is even more heroic; constitutionalization is associated with a variety of desired outcomes, including peace, legitimacy, rule of law, respect for human rights, accountability, and transparency. 

Notably, however, CIL fails to establish two critical causal links.  First, what will cause constitutionalization?  Second, and even more important, CIL does not explain how constitutionalization will cause these desired outcomes.   Constitutionalization is for CIL indeed a deus ex machina that can come from above and solve all problems.   In this sense, the authors seem to pre-empt a set of discussions and decisions that should be the result of global political processes. 

Presenting constitutionalization in this way significantly downplays the critical role of political action in achieving and sustaining the outcomes CIL associates with constitutionalization.  Specifically, this vision of constitutionalization misleads by eliding the hard work and political engagement necessary to generate outcomes like the rule of law and respect for human rights.  It is a mistake to think that the enactment of positive law, even constitutionalized law, automatically leads to these results.  Instead, as Jutta Brunnee and Stephen Toope emphasize in Legitimacy and Legality in International Law, the enactment of positive law can usefully be considered a starting point, rather than a culmination.  Alternatively, the enactment of positive law may punctuate social developments.  A participatory process for production of positive law allows participants, including states and other persons, to evaluate for themselves each step.  A scholar’s insistence on a particular step is undemocratic in the most fundamental sense; indeed it evidences the soft paternalism exercised by Odysseus when he decides, on behalf of his crew and against their wishes, to pull his men away from the Island of the Lotus Eaters.    Only the social roots that are built through participatory processes enable law to exist and to endure.  Thus, we wonder whether CIL’s treatment of the Lotus, and its understanding of constitutionalization, might produce a euphoria that distorts vision and obscures the need for the pragmatic, ongoing efforts required to make outcomes like rule of law and respect for human rights concrete achievements.   

The arguments presented in CIL downplay the role of politics in another way as well.  The volume places individuals at the center of the constitutionalized global community.  Since individuals are rights-holders, CIL naturally devotes substantial attention to individuals’ ability to enforce those rights judicially and, more broadly, to the role of international courts.  However, for a book that celebrates global democracy, the emphasis on global courts is paradoxical.  CIL  recognizes that “international adjudicators are even less democratically legitimate than the international regulators” (p. 292) and that the “accountability created by courts and tribunals” cannot compensate for a lack of democratic accountability (p. 340).  CIL’s reliance on courts to produce and enforce normatively desirable constitutional outcomes underemphasizes the ways in which those outcomes can only be sustainably produced by ongoing political activity.

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CIL is just one of various recent efforts to describe international constitutionalization.  Elsewhere, we’ve presented an alternative account that can be usefully contrasted with CIL’s.  Our account does not presuppose a normatively desirable set of outcomes.  Instead, it provides states and other relevant legal actors with a roadmap for how to achieve outcomes that they choose to pursue.   Perhaps for this reason, we focus much less on judicial processes than CIL does, and much more on international legislative processes.  Finally, we highlight the role of international politics in achieving anything close to a constitutionalized international legal order.

We do so by detailing a “functionalist” account of international constitutional norms.  Notably, our “functionalism” is not the functionalism that CIL criticizes for obscuring the distinction between legal and non-legal norms (pp. 99-106).  Rather, our functionalism focuses on what constitutional norms do, the roles they play, in response to the actually expressed needs of states and other international legal actors.  Our functionalism, then, is very much of the “bottom up” variety, and is usefully contrasted with the “top down” identification of constitutional desiderata found in CIL.  CIL asserts that the constitutionalization it envisages is “bottom up” by virtue of its reliance on individuals as the central actors.  However, the best evidence of individuals’ actual wishes today is still derived inductively from state action, not deductively by scholars.  Because the principles inherent in the Lotus worldview are rooted in and rely upon actual practice, they have a greater foundation in normative methodological individualism than those proposed by CIL.   

Our purpose in highlighting these differences is less to argue that one approach is better than another than it is to underscore some of the ways that CIL helps to clarify and advance debates over international constitutionalization.  CIL presents a challenging vision of constitutionalization that can be understood as reversing the vision of international law associated with Lotus.  The question is whether, by eliding the sustained political efforts needed to produce outcomes such as rule of law and respect for human rights, CIL embraces an overly heroic vision of law and correspondingly downplays the hard work of making these aspirations a concrete reality.

Our goal was neither to be normative in the sense of saying what should be, nor to be comprehensive in the sense of including all important international law in the category of “international constitutional law.”  We tried to devise a distinct definition of “constitutional” law at the international level.  It seemed to us that a strong analytical framework might be undermined if we tried to include in “constitutional law” all international law that is important, or morally compelling.  In other words, we wanted to develop an approach that could distinguish between a highly legalized international order and a constitutionalized international order.

In our view, then, it became necessary to narrow what we term “constitutional” at the international level, in order to produce an analytically distinct category.  Like Schneiderman, we worried that the category became too narrow, and so, included the broader category of “supplemental constitutionalization” to include international rules that addressed issues that are ordinarily addressed by domestic constitutional law, but where the effect of the domestic constitutional norms became jeopardized by globalization.  Efforts to introduce ‘due process’ protections into the Security Council sanctions procedures are, for us, an example of “supplemental constitutionalization.”  Thus, our functional approach includes a satisfyingly open and potentially large category, albeit one that raises some analytic concern when compared to the more conceptually discrete, and defensible, categories of enabling and constraining constitutionalization.  Having said that, it follows that international investment norms, like international trade norms, do not necessarily fall into the category of “supplemental constitutionalization.”  Many rules of international trade law and international investment law, such as rules not to raise tariffs over a specific bound rate, or rules not to impose performance requirements, are “ordinary” international law rules that simply restrict the discretion of states.  That domestic constitutional norms similarly restrict the discretion of states  does not make international investment or international trade law “constitutional” at the international level.  To make this analytic leap is to turn virtually all of international law into international constitutional law.  Our functional approach, in contrast, insists on this analytical “levels” distinction:  international constitutional law consists primarily of rules that govern (or restrict) the production of international law.   

Schneiderman raises an important point about the politics of international constitutionalization.  We agree with him that labeling international investment law (or international trade law) “constitutional” can be an effort to privilege those norms over other norms, such as human rights, and Dunoff’s chapter on the WTO pursues this argument at some length.  Indeed, this is one of the reasons we thought it important to develop a mechanism that would decline to term these types of rules as “constitutional” at the international level, even though they may perform a restraining, or even constitutional, function at the domestic level.  Thus, one important virtue of limiting the label “constitutional” to those secondary rules that govern the production of other international norms is that it leaves open for contestation the controversial normative and political issues Schneiderman raises, such as the relationship between trade and human rights law, as opposed to trying to resolve these issues through definitional fiat.

Moreover, our additional category of supplemental constitutionalization allows certain core constitutional functions that are challenged by globalization, such as perhaps human rights, to be privileged by inclusion within the category of international constitutional law.  The distinguishing feature for this category, then, is one of constitutional subsidiarity:  since it is no longer possible adequately to carry out these constitutional functions at the domestic level, it becomes necessary to carry them out at the international level.

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.  This functionalist approach directs attention to the purposes that international constitutional norms are intended to serve.  We emphasize three of these functions.  First, international constitutional norms authorize or enable the creation of international law.  Examples would include treaty provisions that endow international bodies with the ability to create secondary norms, as we see in the EU.  Second, some international constitutional norms constrain the production of international law.  Thus, jus cogens norms act as a limit on the production of international law.  Similarly, European Court of Human Rights decisions holding that ECHR norms trump other treaty commitments by member states gives the Convention a constitutional dimension, as it constrains the making of inconsistent international norms. 

We also identify a third category of international constitutional norms.  These norms arise in response to perceived deficiencies in domestic constitutional orders, particularly those that arise as a result of globalization.  The Solange jurisprudence provides an example of what we have in mind.  In Solange I, the German Federal Constitutional Court faced a claim that an EC law violated rights guaranteed by the German Constitution.  Although the ECJ had previously held that EC law was supreme, the German court held that it could nevertheless review EC law for consistency with the German constitution, particularly as the EC had not developed a fundamental rights jurisprudence.  In response, the ECJ began to review Community enactments for consistency with fundamental human rights, notwithstanding the lack of explicit textual support for this position in EC treaties.  We view this jurisprudential innovation by the ECJ as an example of an international regime responding to pressures for “constitutional” norms that will constrain international law-making activity in areas previously governed by domestic constitutional norms.  Ongoing controversies regarding the Security Council’s ability to add names to a list of terrorist groups, triggering the imposition of economic sanctions, may reflect a similar dynamic.

Adopting this functional perspective, it is apparent as a descriptive matter that the international legal order has many constitutional features, including customary rules of international law relating to legislation through custom and treaty; provisions addressing the U.N. organs and especially the Security Council as sources of law and of executive authority; and the implicit and explicit rules that govern law-making by the ICJ and other tribunals.  This is a set of constitutive features that indeed fulfil, at a rather low level, the legislative, adjudicative, and executive functions described in many constitutions.  We also see international legal rules that provide some substantive prohibitions and rights that are also associated with domestic constitutions.    

As a normative matter, these various constitutional norms can and should be evaluated in terms of their ability to enable individuals and states to advance the international public policy goals that they aim to achieve.  No doubt, some changes to current constitutional features could enhance the ability of individuals and states to achieve their goals; thus constitutional rules do not only determine how international bodies absorb the need for change, but constitutional rules themselves should change over time.  Hence we view constitutionalization as a process, and different international regimes exhibit greater or lesser degrees of constitutionalization over time.  It is important to point out that this process has no particular teleology.  Rather, the level of intensity and structure of constitutionalization at any given moment is determined largely by functional needs, which in turn evolve through social, economic, ideational, and technological change. 

Here, as in so many other ways, the European project is instructive.  The European Union is an example of independent sovereign states, and their citizens, agreeing to strong international institutions, and reducing their independence, to enhance the welfare of their citizens.  As the Schuman Declaration of May 9, 1950 predicted, Europe was not built all at once, or according to a single plan, but was able to respond over time to on-the-ground needs through constitutional change.  Europe demonstrates the validity of the functionalist vision.   Of course Europe has involved a smaller numbers of states, with greater homogeneity of culture, economic development and preferences than exists in the broader world.  However, this is all a matter of degree, and of scale, and our point is not that the world will or should look like Europe, but that the same questions asked about the utility of institutions and law-making processes, and their limits, in Europe can be asked today about the utility of institutions and law-making processes in the global setting.  By labelling these questions “constitutional”, we are merely claiming that they affect the allocation of authority to international governance mechanisms, and the limits on allocation of authority to these governance mechanisms.  We also claim that some of the ways in which international law has changed to perform constitutional functions that have earlier been performed by the state, but can no longer effectively be carried out by the state due to social, economic, ideational, and technological change, presumably in accordance with constitutional subsidiarity, are also “constitutional” in character.