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…)

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…)

Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate.  I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice. 

Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants. 

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential.  (more…)

Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.

Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL.  Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs.  As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?”  Who has interpretive authority over it?

It’s contested, and always has been.  That is a historical constant, and so in writing the original article I mentioned it but did not follow it up.  But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law.  It is a dynamic of fragmentation. 

The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation.  The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority.  But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy.  (more…)

Editor’s Note: This is the second in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The first posts in the series can be found here.

From where I sit, The Rise of International Criminal Law is firmly within the traditional line of American centrist views of international law.  Your results may differ, of course.  But if this article is not liberal internationalism, of the kind that still so animates the academy; neither is it skepticism as to the very category.  It is pragmatic, cautious, state-centric, and sees the category as both important but deeply fragile.  Fragile, that is, precisely because it proposes to be “law” – yet without being embedded in a social structure which would offer a society, and from there an embedded politics, and from there an embedded judiciary.  It is the universal – but the universal alone, and so weak, fragile, naked, and exposed to the world – simultaneously, however, pontificating on its own universal glory and goodness and future-world-ordering authority.  Universal international law gains independent authority and normative force, paradoxically, only when it is firmly embedded within other structures of politics, society, and authority – that which is found today only in sovereign states.

 It – international law – stands in deep need of shelter by powerful states through their politics.  But protection from what, exactly?  From threatening political winds from outside it?  Yes, certainly.  But not just that – it also needs protection from itself.  Left to its own devices, the “society” of international law, such as it is, believes its own press releases, communiqués, court opinions, and views of publicists, and so threatens to drive itself off a cliff.  International law unchecked tends toward uncontrollable positive feedback cycles, driven these days by its “values” mechanisms, whipped forward by the human rights community, itself driven forward by an uncontrollable positive feedback mechanism of self-reinforcing religious belief, on the one hand, and utter instrumentalizing of international law to those religious ends, on the other. (more…)

Editor’s Note: This is the first in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Professor Kenneth Anderson is Professor of Law at the Washington College of Law, American University and Research Fellow at the Hoover Institution on War, Revolution and Peace at Stanford University 

I am grateful, first, to Brad Roth and Amrita Kapur for their eloquent and carefully considered responses to my EJIL essay, The Rise of International Criminal Law.  It is rare to receive such close reading, on the one hand, and at the same time two such strikingly different comments.  Each succeeds in framing the grand issue in legal, policy, and political terms quite as large as the original article.  Second, my thanks to the EJILTalk! editors for their patient willingness to continue this discussion beyond the article.  My response below is as free-ranging as the original, and goes to places where neither the original article nor the responses run, but which I think provide some context for the article’s observations.  I have broken my response into three separate posts for convenience. 

I) A (Thin) Politics, Not a Society

Roth observes that The Rise of International Criminal Law does not adopt a frontal assault on the institutions of ICL.  In this, and in his further observation that the article is one of “unease,” he is entirely correct.   The unease has to do, as Kapur likewise observes, with misgivings about the centrality that ICL has assumed within the whole conception of international justice and, I would emphasize, the whole of what we loosely call the international system.  This unease rests on a still deeper ground of skepticism.  It is one that I have raised in many different settings, but left aside in my article.  It perhaps bears stating now, although I realize it carries the discussion different directions from the original article.

It is that international law, at least in its liberal internationalist incarnation, and particularly ICL as an especially intense version of it, takes as its ground the legitimacy that attaches to domestic systems of justice in settled domestic societies.  ICL lacks this legitimacy, because the international system is not a society in the sense of the legitimacy that attaches to a social system and which gives a society’s mechanisms of law and courts and criminal justice their ability to become internalized in Weber’s classic sense.  At most this international system is a politics, not a society, and only a thin politics at that.  The sense that ICL is the system of criminal law, whether conceived as for that global  “society” or for the rest of the world beyond that “society” of transnational elites that staff it is even more tenuous.

The customary retort is that the crimes at issue are so horrific and so universally reviled that no “thicker” international society is needed for their prosecution and punishment.  We can all agree on genocide, at least.  We do not need a “society” in which to embed and legitimate a legal system if we are talking about those kinds of crimes; universality can be vested in the purely international and transnational, at least for those limited, universally despised crimes.  I have always found this reply singularly unpersuasive.  (more…)

 Amrita Kapur is a Consultant with the International Development Law Organization, and recently appointed as the International Advisor to the Women’s Justice Unit of the Judicial System Monitoring Programme in Dili, East Timor.  She has previously worked at the International Center for Transitional Justice, the International Criminal Court, and as a domestic prosecutor and Legal Aid criminal defence lawyer. In this post she responds to the article by Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” and a recent post by Brad Roth

Professors Anderson and Roth accurately characterize the disparity between international criminal law (ICL) rhetoric and the continuing tolerance of impunity as hypocrisy with the worst kind of consequences.  However, their predictive speculations overlook important distinctions between ICL and humanitarian intervention, including historical context and the underlying catalysts for their continuing evolution. Roth’s response highlights the confluence of the two, but ultimately seeks to conflate their objectives and neglects emerging trends: in so doing, he fails to address the inherent shortcomings of the international criminal process as a tool to further the international criminal justice (ICJ) project.  This reply addresses humanitarian intervention and ICL as constituents of the ICJ project, referring to both Roth and Anderson for conceptual completeness.

1.  Nurturing a culture of humanitarian intervention

The central position occupied by ICL in the international legal order is claimed to give rise to two extreme situations: the guarantee that genocide will occur without intervention (Anderson) and/or the unchecked illegal use of force by powerful states (Roth).  As briefly addressed in my previous reply to Anderson (at 1031), framing ICL as a policy alternative that reduces the pressure to intervene presupposes intervention is an established and otherwise “morally inevitable” practice: this is simply not the case. 

Humanitarian intervention is a very recent politically and militarily significant extension to the principles espoused by ICL.  Rather than being opposing or counter-balancing trends, humanitarian intervention and international criminal accountability are concurrently developing: while they are not entirely independent of one another, they are at different stages of ‘maturation’ and given the contrasting commitment in resources and political capital, inevitably developing at different paces.  Numerous humanitarian crises have elicited a peacekeeping force from the Security Council (Sierra Leone, East Timor, Bangladesh, Cambodia and the DRC are just a few), but always with mandates falling short of ensuring the protection of human rights and cessation of international crimes.  A fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non-intervention.  (more…)

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. This post is adapted from “The International Legal System as a Constitution” in: J.L. Dunoff/J.P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge UP 2009), pp. 69-112

International lawyers have often construed international constitutionalism as an offspring of the institutionalization of international law. An international constitutionalism would be able to draw the conclusion from the increasing institutionalization of the international realm by applying principles known from domestic constitutional law to the international system, resulting in a universal Kantian “state of law,” away from the “state of nature” or anarchy of international relations. In the same vein in which a constitution unifies the domestic polity in one legal superstructure, a developed, institutional reading of international law would unify the international community in one coherent constitutional structure.

 Today, this institutionalist reading of international law has fallen prey, in a certain regard, to its own success. While an increasing institutionalization and organization of international organization can hardly be doubted, the general impression is one of fragmentation rather than constitutionalization of the international legal system. In other words, the diverse and divergent institutions fail to come under a single scheme; rather, the systemic character of international law seems threatened by a multiplicity of international régimes without obvious coherence. The constitutionalization of partial régimes appears as antidote rather than confirmation of the constitutionalization of the international legal system as a whole. Calls for a true constitutionalism that would put the different subsystem into order confirm this intuition.

The absence of a single world constitutional order, however, should not blind us to the ever-increasing relevance of international cooperation and concomitant legal regulation for individual human beings. International constitutionalism needs to be decoupled from the building of new international structures. Rather, what is called for is a constitutional mind-set (Martti Koskenniemi) or a constitutional reading of the international legal foundations on which today’s fragmentation of international legal rules rests. Rather than asking whether the constitutional structure of the Charter organs are sufficiently similar to those of the state, my piece reflects on whether and how the international legal order fulfils the background principles for a constitutional order in the constitutional tradition. If not, the resistance to international regulation will likely – and justifiably – grow, and the accommodation needed for international order will not be forthcoming. (more…)