EJIL: Talk!

Blog of the European Journal of International Law

Articles posted by Geir Ulfstein

Constitutionalization: What is the value added?

Published on July 19, 2010 Author: Geir Ulfstein

First of all: thanks for the thoughtful comments by Daniel Bodansky, and Jeffrey Dunoff and Joel Trachtmann. As I read them, they are not rejecting constitutionalization as a useful approach to the study of international law. This does not, however, mean that they subscribe to everything that is said in The Constitutionalization of International Law. I will take up some of their main concerns and objections – which does not commit my co-authors.

I have emphasized the public law character of international constitutionalization, i.e. that empowered international institutions should be under constitutional control, in the form of democratic guarantees, rule of law, and protection of human rights. Our book is a thought experiment in asking how a constitutionalized world could look like. There is an underlying assumption that the world is becoming more constitutionalized. But the book does not represent an empirical study of this process and its causes. It is more concerned with the normative issues: what kind of constitutional guarantees should balance the increasing empowerment of international institutions?

This does not mean that we are fully occupied with enjoying the Lotus garden at the expense of hard work, as Dunoff and Trachtman suggest. First, the development of a constitutional perspective and its possible consequences represent in itself hard work. This is what we have tried to do in the book. But, second, although we have not undertaken an empirical study in this book, this does not mean that we dismiss the value of such studies. On the contrary, empirical studies are welcome and necessary. It is important to examine how different institutions, including international courts, are organized and function from a constitutional perspective. Such studies should form the basis for any concrete normative proposals. Read the rest of this entry…

Filed under: EJIL Analysis, EJIL: Debate!, Theory of International Law

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Empowerment and Constitutional Control

Published on July 14, 2010 Author: Geir Ulfstein

Professor Geir Ulfstein is Professor in the Department of Public and International Law, University of Oslo

International institutions exercise more and more power. This is not limited to foreign policy issues, such as international security or trade, but increasingly also to issues traditionally under exclusive domestic control, such as the relationship between states and their citizens. Furthermore, the distinction between what should be considered international and domestic is becoming irrelevant.

International lawyers have traditionally focused on the need for effective international institutions. This is no less important today. But with increased international powers comes the need for control. The original consent in the form of ratification to treaties establishing international institutions is seen as insufficient to justify their power. A constitutional approach emphasizes the relationship between empowerment and control.

This is not to say that treaties are formal constitutions. Treaties, including those establishing international institutions, are agreements, and states are free to choose whether to become parties or not. But states may in practice have little choice if they want to influence policy-making in the institutions, to reap the benefits of membership, or to be regarded as an actor of good standing in the international society. Neither should the claim to superiority be seen as a necessary part of a constitutional order. Furthermore, the focus should not only be upon formalized rules in the form of treaties. Also legal practice forms part of a legal order.

A fundamental question relates to ‘translation’: To what extent is it useful to apply constitutional principles developed for domestic legal orders to international institutions? A response would be that since such institutions exercise powers comparable to, and partly at the expense of, national constitutional organs, they should be subject to comparable control. This does not mean that the constitutional principles should be imported whole cloth. But certain fundamental principles such as democratic control, rule of law and the protection of human rights are also relevant for the international institutional order. It is of course possible to examine the way in which international institutions respect each of these requirements separately. Such an approach misses, however, the need to see the inter-action between the principles.

Constitutionalism can be of a descriptive and normative character. It can be used to legitimize international institutions that do not deserve it. More important is, however, the critical potential of constitutionalism. A constitutional approach can be used to hold international institutions to account in requiring that they fulfil certain basic requirement when they exercise their powers. In the following, international organizations and courts will be examined from a constitutional perspective (chapters 2 and 4 of The Constitutionalization of International Law). Read the rest of this entry…