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Constructing the Global Constitutional Community – A Response to Anne Peters

Published on July 21, 2010        Author: 

Steven Wheatley is Professor of International Law at the University of Leeds, and author of The Democratic Legitimacy of International Law (Oxford, Hart, 2010).

 It is a pleasure to comment on this publication and especially the arguments developed and summarized on EJIL Talk! by Professor Anne Peters (see here), whose writings are constantly illuminating and provocative in their analysis of the emergent patters of international law and concern for the establishment of political legitimacy for global regulation.

The focus of Chapter 5 – ‘Membership in the Global Constitutional Community’ – is the increasingly significant distinction in the theory and practice of international law between the concepts of an international community of states and international community of state and non-state actors. The analysis highlights the shift in international law from a system of inter-state contract to one of global governance in which regulatory norms are no longer exclusively established by an expression of sovereign will (the ‘Westphalian’ paradigm). States retain a pre-eminent role in the regulation of world society, which is justified by their roles as representatives of citizens and guarantors (through the coercive instruments of government power) of the rights of the individual. States are, though, not the only actors in global regulatory settings: individuals, international organizations, international non-governmental organizations and business organizations are increasingly recognized as possessing a legitimate ‘voice’ in the development of international law norms and in the design of regulatory mechanisms and measures.

The inclusion of non-state perspectives might not present a revolutionary or constitutional ‘moment’ in the regulation of world society; it is, after all, an example of the better, more inclusive, forms of law-making familiar to advanced democracies. The argument here, though, extends beyond conceptions of ‘best practice’. The Global Constitutional Community includes both ‘sovereign’ states and a plurality of non-state actors, all of which are instrumentally valuable to the extent that they represent the interests of individuals and allow for the avoidance of domination over and injustice against persons. The shift from an ‘international community of states’ to a Global Constitutional Community suggests that the legitimacy and validity of global law norms must depend (at least in part) on the establishment of law-making processes that allow for the representation of the plurality of interests and perspectives of individuals in global political debates and discourses – as global citizens; as citizens of democratic states; and as political actors with ‘self-interested’ and ‘other-regarding’ positions. Two questions arise: the extent to which it is meaningful (in theory or practice) to speak of a (global) political community defined by the concept of international law; and whether the constitutionalist concern to establish political legitimacy for global norms is undermined by an analysis that constructs the world of law in the image of hegemonic power. Read the rest of this entry…

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Dual Democracy

Published on July 21, 2010        Author: 

This post summarises the ideas in Chapter 6of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.

1. Overview of the Argument

Global governance is undemocratic even under a modest standard. The deficits lie in the institutional design of the international organizations and bodies themselves, they result from the way states are integrated into the system of global governance, and finally they concern the relationship between citizens and the international institutions.

On the premises that all rule over persons should be democratic, and that the globalization-induced hollowing out of domestic democracy should be compensated as far as possible, the democratization of global governance is inescapable. Because a stand-still or roll-back of global governance is unfeasible, and therefore no way to re-invigorate democracy, a new design to enhance global democracy is needed.

Global constitutionalism requires dual democratic mechanisms. These should relate both to government within nation states and to governance ‘above’ states, thus to multiple levels of governance. The result should be a multi-unit democracy, built with domestic and international building blocks.

A fully democratized world order first of all rests on democratic nation states, thus on democracy within states. The spread and support of national democracies constitutes a kind of indirect global democratization. It already is and should be further encouraged by international law. Because of its fundamental and systemic importance, the requirement of democracy within states should be acknowledged as a global constitutional principle.

 ‘Above’ states, both the production of primary international law and the international institutions and their secondary law-making can and should be democratized on two tracks. On the one hand, citizens should continue to be mediated by their states which act for them in the international relations (statist track). On the statist track, states as principals of international institutions should be reasserted and their influence improved. But because the ultimate reference point of democracy are natural persons, such a state-mediated democracy is present only to the extent that states really are the representatives of their citizens. It follows that we can meaningfully speak of an indirect democratization of the global order on the statist track only when all states have realized domestic democratic government. As long as not all states are democratic, a large number of people are not represented in a democratic sense by their states in the international institutions. Read the rest of this entry…

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Constitutionalization: What is the value added?

Published on July 19, 2010        Author: 

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…

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The Lotus Eaters

Published on July 16, 2010        Author: 

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.

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…

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The Constitution of Constitutionalism

Published on July 15, 2010        Author: 

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?  Read the rest of this entry…

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Empowerment and Constitutional Control

Published on July 14, 2010        Author: 

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…

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Constitutionalization and International Law-making

Published on July 13, 2010        Author: 

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. Read the rest of this entry…

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The Constitutionalization of International Law

Published on July 12, 2010        Author: 

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.

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The Rise of International Criminal Law: A Further Rejoinder to Roth and Anderson

Published on July 8, 2010        Author: 

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. Read the rest of this entry…

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The Place of International Criminal Justice within the International Legal Order: A Rejoinder

Published on May 27, 2010        Author: 

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.  Read the rest of this entry…

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