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.  (more…)

From August 2010, Professor Daniel Bodansky will be Lincoln Professor of Law, Ethics and Sustainability at Arizona State University’s Sandra Day O’Connor College of Law. Previously, he was Emily and Ernest Woodruff Chair in International Law and Associate Dean for Faculty Development at the University of Georgia. In 2009 and 2010 he has been a Visiting Fellow at the Smith School of Enterprise and the Environment at the University of Oxford.

The recent appearance of two new books on international constitutionalism – Jeff Dunoff and Joel Trachtman’s Ruling the World (the subject of an earlier EJILTalk symposium) and the volume by Jan Klabbers, Anne Peters and Geir Ulfstein that is the subject of this symposium – suggests that constitutionalism is becoming the latest concept du jour in international law, following on the heels of legitimacy, legalization, and fragmentation.   Both books are the fruits of multi-disciplinary, international collaborations:  Ruling the World includes contributions from more than a dozen scholars from the US and Europe; likewise, The Constitutionalization of International Law grew out of an international conference in Kandersteg, Switzerland, organized by Anne Peters, involving lawyers, political scientists and economists, which was the subject of a special issue of the Indiana Journal of Global Legal Studies.  Both books involve top international law academics and are enormously valuable contributions to the field.

The newfound interest in international constitutionalism raises many questions:

• First, there are conceptual questions about the meaning of constitutionalism generally and international constitutionalism more specifically.  What is a “constitution,” what is “constitutionalism,” and what is the relation between the two?  How might constitutionalism translate to the international sphere?  What would an international constitution look like? Here it is useful to distinguish a thinner and thicker sense of a “constitution”?  On the thinner view, a constitution is simply the body of law that sets forth the fundamental (that is, superior and more difficult to change) rules of a political community.  A constitution both constitutes and constrains political power, by creating and setting limits on the basic institutions and decision-making processes of a regime.  The thicker view – embraced by Klabbers, Peters and Ulfstein – associates constitutionalism with a number of more specific procedural and substantive limits that reflect liberal political values, including democracy, separation of powers, fundamental human rights, and judicial review.
• Second, there are explanatory questions about the causes and effects of constitutionalism?  For example, what are the social preconditions of constitutionalism and are they present internationally?  Is constitutionalism possible only when there is a political community with a common history, language, and “public space”?  What explains the sudden upsurge of interest in constitutionalism among international lawyers?  Does this reflect actual changes in international relations, for example, – an actual growth in constitutionalism as a mode of governance?  Is it a reaction to increased concerns about fragmentation and illegitimacy in international law – an attempt to put international law on a stronger normative footing?  Can it be explained as an effort by European lawyers to extrapolate or generalize from the EU experience to global politics more generally?  Or does it have some other explanation?
• Third, there is the descriptive question: Is there, in fact, an international constitution?  Or, at least, is international law becoming more constitutional?  Is it developing constitutional aspects or dimensions?
• Finally, there are normative question about the proper role of constitutionalism in international law.  Should there be an international constitution?  If so, what should an international constitution look like?  How well does existing international law measure up when evaluated against the standards of constitutionalism?  And what changes are needed?

Of these various questions about constitutionalism – conceptual, explanatory, descriptive, normative, and meta — which do Klabbers, Peters and Ulfstein address?  (more…)

Editor’s Note: This is a featured post. Newer posts, including those in our online symposium on The Constitutionalization of International Law, appear below

The ICJ has now officially announced that it will deliver its advisory opinion in the Kosovo case on 22 July. This essay/post is intended to serve as a preview of the many issues raised in the case, of the main lines of argument by states before the Court, and of the several possible avenues that the Court might take in deciding the case. (more…)

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). (more…)

Professor Jan Klabbers is Professor of International Organisations Law, Director of the Centre of Excellence in Global Governance Research and Deputy Director of the Erik Castren Institute of International Law and Human Rights at the the University of Helsinki.

The main question underlying the recent book byAnne Peters, Geir Ulfstein and I - The Constitutionalization of International Law  - is this: presuming that international law is indeed, as many contend, constitutionalizing, then what would international law come to look like? Given that there are a number of issues constitutional regimes usually address (political institutions of the community, membership, judicial organization, law-making, and procedures for the making of decisions), we wondered how these would, could or should be addressed in a constitutionalizing international legal order. Our aim was not to demonstrate that constitutionalization is actually going on – we simply presume it is, and leave the demonstration to others. Nor did we set out to sketch an ideal global constitutional order: this is a task perhaps best left to moral philosophers. Instead, we decided it might be interesting to take the claim of constitutionalization seriously and try to figure out what its consequences would be for international law.

The book’s first chapter is dedicated to ‘setting the scene’. It discusses globalization and a number of other current and related phenomena, such as the fragmentation of international law. One of the main points of the opening chapter is to establish that, in a world of well over six billion people, divided into 200 states and a handful of major religions, cultures, and ethical traditions (not to mention their widely divergent situations, giving rise to widely diverging interests), full agreement on all political topics is unlikely. In other words: the chapter recognizes that we live in a world of value pluralism, which entails that constitutionalism has to be pluralist as well: it has to respect and accommodate pluralism.

Second, a constitutional order needs to be a legitimate order. Now, legitimacy is a term which has been, and is, much abused, and while the chapter tracks the legitimacy debate to some extent, the main point for present purposes is simply this. Hypothetically, a constitutional order can be ran in many fashions – depending on one’s definition of constitutionalism, there may be no inherent contradiction between constitutionalism and enlightened dictatorship or rule by aristocracy, or even foreign rule or empire. Yet, these are not versions of constitutionalism we would subscribe to. Instead, the idea of a constitution carries overtones of political legitimacy: a constitutional order is a legitimate order, and a legitimate order is one where all relevant stakeholders are involved in governance, in one way or another. (more…)

The  Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. (more…)

Over the next couple of weeks, we will be hosting an online symposium discussing the recent book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (OUP, 2009). This is one of series of recent books examining constitutionalism at the international level. Readers will remember that we held a discussion of another such book edited by Dunoff & Trachtmann, Ruling the World? Constitutionalism, International Law, and Global Governance in December 2009 (see here for posts on that book). The book by Klabbers, Peters and Ulfstein addresses conceptual concepts about constitutionalization (what is it?) and tackles whether the process is indeed taking place and what implications this has for interntional law. It asks: 

to what extent the international legal system has constitutional features comparable to what we find in national law. This question has become increasingly relevant in a time of globalization, where new international institutions and courts are established to address international issues. Constitutionalization beyond the nation state has for many years been discussed in relation to the European Union. This book asks whether we now see constitutionalization taking place also at the global level.

The book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level and what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book is a critical appraisal of constitutionalist ideas and of their critique. It argues that the reconstruction of the current evolution of international law as a process of constitutionalization -against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law- has some explanatory power, permits new insights and allows for new arguments.

In addition to posts by the authors summarising the ideas in the book, we will have comments by Jeffrey Dunoff (Temple University), Joel Trachtman (Fletcher School, Tufts University); Dan Bodansky (Arizona State Unversity), Steven Wheatley (University of Leeds) and Jean L. Cohen (Columbia). As always readers are invited to add their own comments.

Editor’s Note: This post is part of series discussing the 2009 EJIL Article by Professor Kenneth Anderson: “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Previous posts in this discussion were by Ken Anderson (see here, here here and here), Brad Roth and Amrita Kapur. You can read these posts by clicking on their names in the list on the right.

Update: This post was originally posted under the name of Dapo Akande. This was incorrect.

I would like to thank Brad Roth and Kenneth Anderson for their thoughtful engagement (see here and here) with my previous contribution to this discussion (see here).  Given the time that has elapsed since our discussion, I will restrict this response to a number of discrete issues raised by both.

 Firstly, despite taking issue with my approach, Roth nonetheless reaffirms a number of propositions already contained in my earlier contributions, including on the possibility of ‘false positive’ cases of intervention, the procedural flaws of criminal prosecution, and the difficulties in prosecuting those most responsible.  He correctly challenges the feasibility of ‘an authoritative condemnation of perpetrators’ when the ‘use of ruthless methods by …. non-pathological’ actors gives rise to a too-large pool of potential ICL defendants and consequently, prosecutorial selectivity.  My complete agreement with these sentiments is reflected in my previous post, which criticizes the criminal prosecutorial process as a method by which justice is achieved because of its inherent procedural flaws. 

I neither expect prosecutions to necessarily achieve an ‘authoritative’ condemnation of all perpetrators, nor do I believe they are essential to, intended to, or in fact, reaffirm the dignity of the victims: criminal trials have never revolved around victims, who are treated merely as witnesses for the ‘wronged’ state.  In both my EJIL article (which responds to Ken Anderson’s original article) and my post, I embrace a broader notion of justice which includes mechanisms such as truth commissions, reparations, lustration and memorialization efforts as part of a multi-faceted response to systematic or widespread violations of human rights (also termed transitional justice).  It is these non-prosecutorial initiatives that specifically seek to recognize victims and promote possibilities for peace, reconciliation and democracy. (more…)

On June 24, Chatham House held an event in London to review the recently held Review Conference of the International Criminal Court. The discussion was moderated by Elizabeth Wilmhurst who heads the International Law Programme at Chatham House. The four speakers at the event were Chris Whomersley, Deputy Legal Adviser at the UK’s Foreign & Commonwealth Office and head of the UK’s delegation to the ICC Review Conference, Akbar Khan, Legal Director at the Commonwealth Secretariat, Chris Hall, Senior Legal Adviser at Amnesty International and me. The discussion ranged across the various issues discussed in Kampala: stocktaking of international criminal justice, including peace and justice, complementarity and cooperation with the ICC; the crime of aggression and the other proposed amendments to the ICC statute. The summary of the meeting is now available at the Chatham House website (see here).

The discussion on aggression covered many of the matters previously discussed on this blog (see here and here) and over at Opinio Juris (see here, here and here). There was much interest in the conditions under which the ICC will exercise jurisdiction over aggression, particularly the question of whether the amendments would create jurisdiction over all ICC state parties or only over those who accept the amendments. Surprisingly, there was not much discussion on whether the definition of aggression was satisfactory, though there was discussion on the effect of the understandings (for Opinio Juris discussion, see here , here and here). According to the summary:

 A participant raised the question as to whether the understandings were legally binding. It was noted that the US had proposed changing the definition itself but there was no support; they fairly quickly accepted the concept of understandings. Definition of terms forms part of the context of a treaty to assist in its interpretation. The Vienna Convention on the Law of Treaties allows the context to be considered when the wording of a provision is unclear, as well as agreements reached by the parties. It was considered by the discussion participants that understandings had a higher status than just context; on the other hand they could not be considered as part of the treaty amendments (similar to an Annex, for example): no special ratification process had been decided upon for them and in any case not all States Parties were present at Kampala to ratify their inclusion. But a similar approach had been used for the Convention on Jurisdictional Immunities.

Astrid Reisinger Coracini is a Lecturer at the Institute of International Law and International Relations, University of Graz and Executive Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. She was in Kampala as part of the delegation of Austria. Her publications include: ‘Amended Most Serious Crimes”: A New Category of Core Crimes Within the Jurisdiction but out of the Reach of the International Criminal Court?’, 21 Leiden Journal of International Law 2008, 699-718; ‘Defining the Crime of Aggression for the Rome Statute of the International Criminal Court’, in: Stahn & van den Herik (eds.), Future Perspectives on International Criminal Justice (2010) 425-49.

 In an earlier post Dapo Akande asked: “What Exactly was Agreed in Kampala on the Crime of Aggression?”, a question that indeed mandates some reflection. The Resolution on the Crime of Aggression is a sophisticated conglomerate of four documents of divergent legal value: an enabling Resolution, amendments to the ICC Statute that are subject to ratification or acceptance, amendments to the Elements of Crimes and “Understandings”. Let aside the complexity of these texts, legal interpretation is challenged by the fact that there was no plenary debate on the last three versions of the President’s non-paper and the Draft Resolution. The preparatory works are therefore of limited help with regard to the interpretation of some parts of the Resolution.

Inspired by the vivid online discussion on the crime of aggression, I would like to contribute some preliminary thoughts (which represent my personal views and do not necessarily reflect the views of the Austrian delegation) with a particular focus on aspects of the conditions under which the ICC may exercise its jurisdiction over the crime of aggression and the amendment procedure.

 1. Further delay for the Court’s exercise of jurisdiction over the crime of aggression

In 1998, when the crime of aggression was listed as one of the most serious crimes of concern to the international community as a whole for which the ICC has jurisdiction (Art. 5 (1) ICC Statute), the Court’s exercise of jurisdiction was delayed until a time when the Assembly of States Parties would adopt a provision defining the crime and setting out the conditions for the Court’s exercise of jurisdiction (Art. 5 (2) ICC Statute). The provision adopted in 2010 further postpones the ICC’s exercise of jurisdiction. “The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendment by thirty states parties” (common para. (2) of Art. 15bis and Art. 15ter). In addition, the jurisdictional regime requires activation by a decision to be taken after 1 January 2017 (common para. (3) of Art. 15bis and Art. 15ter). This further delay is unfortunate, but limited by an acceptable time-span. Any solution to adopt the definition and defer deliberations of the conditions (or parts of them) would have entailed the potential threat of infinite negotiations. In its final form, the package adopted in Kampala comprises all relevant substantive and procedural issues. The activating decision should be a merely formal act, if states parties stand behind the consensus adoption and, especially, if a significant number of states parties will have ratified the amendments by then.

 2. Who is bound and who is covered by the ICC’s exercise of jurisdiction over the crime of aggression?

Entry into force according to Art. 121 (5) (more…)