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The Constitutionalization of International Law: A rejoinder

Published on August 4, 2010        Author: 

Editor’s Note: This post continues our discussion of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law. In this post Prof. Peters responds to earlier posts by Professors Dunoff and Trachtman , Steven Wheatley, Jean Cohen, and  Dan Bodansky.

It is an honour to receive comments by distinguished experts on constitutionalism and international law. And it is fun to engage in a substantial discussion on difficult issues.

1. Method: All commentators raised important methodological issues.

Description and (‘top down’) prescription

Dunoff and Trachtman reproach us of a ‘top down’ approach to constitutionalism. In the introductory chapter, it was made clear that the book is, as such, a normative exercise, on a middle level of abstractness, and hooking onto existing legal rules, principles, and institutions. To the extent that this meant to ‘extrapolate’ trends (of constitutionalization), the study included the claim that these trends actually exist (a claim which was openly formulated in the book).

Dunoff and Trachtman also reproach us of embracing an ‘overly heroic vision of the law’. This critique manifests a disciplinary rift in the approaches of the two books, ours and the one edited by our critics. (see here)Dunoff and Trachtman espouse a more empirical method, more informed by social science. In contrast, we as a trio have not attempted to apply sociological methods, neither in quantitative not in qualitative terms. Our arguments are, as declared in Chapter 1, normative ones.

International constitutional law and politics

Steven Wheatley points out that the ‘language and metaphors of constitutionalism suggests a realm of (“neutral” and “objective”) discourse that sits above … politics’, whereas in reality the ‘global constitutional settlement … is the product of political debate, discourse, and will’. Along that line, Dunoff and Trachtman suspect us of *’under-estimating the role of international politics’.

Dunoff and Trachtman are right in saying that the enactment of positive law is only a ‘starting point, rather than a culmination’. Nevertheless, any (political) action does need a starting point. Under the rule of law, positive law is indeed a conditio sine qua non of governmental action. I postulate that there is an international rule of law which requires international governance to be based on legal rules (i.e. on formal and general prescriptions) as opposed to governance by ad hoc decisions.

Moreover, law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product (and desired consequence) of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics. Read the rest of this entry…

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The Constitutionalization of International Law: Conclusions

Published on July 28, 2010        Author: 

Chapter 7  of The Constitutionalization of International Law discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous. The chapter counters these objections.

1. The term ‘constitution’ might be a misnomer when applied to the international sphere. Also, the danger of blowing up an academic paper tiger is very real. Global constitutionalism as an academic agenda should follow the middle path between merely self-dignifying the status quo on the one hand and hanging onto pipe dreams on the other. In order to gain acceptance in the political realm, global constitutionalists might highlight the current situation of global interdependence. With such a state of affairs, national and global public interests tend to converge more and more, national interests and universal idealism are not necessarily in opposition. Given this convergence of global and national, an ‘idealist’ global constitutionalism which promotes global interests, may even, at least in the long run, further national economic and political interests as well, although some states benefit more than others.

2. The constitutionalist reading of international law might raise dangerously seductive over-expectations. Read the rest of this entry…

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Democracy beyond the state and the problem of too much democracy – Observations on Chapter 6: ‘Dual Democracy’

Published on July 27, 2010        Author: 

 In Chapter 6 of The Constitutionalization of International Law which deals with ‘Dual Democracy’, Anne Peters engages (see post here) with the challenges presented by regulation by non-state actors and the reduction in the importance of sovereign consent in international law to the practice of domestic democracy. The two-track solution depends on the democratization of domestic political systems (democracy within the state) and the democratization of international organizations and other non-state actors, principally through the introduction of parliamentary assemblies and consultation mechanisms (democracy beyond the state).

 International parliamentary assemblies might provide a useful addition to the global institutional architecture, but they would not ensure the democratization of global governance. The establishment of a legislative assembly does not provide democratic legitimacy in the absence of a political community constructed by the exercise of political authority through law. The principal advantages of international assemblies lie in their ability to ensure the representation of the plurality of dominant political opinions within states and to compensate for the democratic deficit that results from the application of the principle of sovereign equality in international law-making (one-state; one vote, irrespective of population size). The most significant contribution would be in establishing an institutional mechanism to monitor the governance activities of global regulators and providing a locus for informed democratic debate on the appropriateness (or otherwise) of global law norms. Read the rest of this entry…

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Thinking Politically about Global Constitutionalism

Published on July 22, 2010        Author: 

Jean L. Cohen is Nell and Herbert Singer Professor of Political Theory and Contemporary Civilization at Columbia University.

I was asked to respond to the chapters of Anne Peters in the new volume, The Constitutionalisation of International Law. Peters’ work is comprehensive, diligent and impressive in its erudition and scope.  It gives a good overview of the arguments on all sides yet does not convince me.  I’ll summarize the general thesis and make some remarks along the way and in conclusion.

Peters’ chapter on Dual Democracy must be situated in the cosmopolitan camp.  Her thesis is that global constitutionalism requires democracy and that democracy must be dual: i.e. it must operate on two tracks: one statist, the other individualist, the former relating to governance within states, the latter to governance ‘above’ states. While it is not clear to me why global constitutionalism requires democracy (Much could depend on the concepts of constitution and constitutionalism which are not examined in these chapters. But whatever conception one works with, surely it is not convincing to equate constitutionalism and democracy: rather their interrelation requires serious theoretical and perhaps historical reflection).  Obviously the real thrust of the chapter is about imagining a feasible utopia of democratic global governance.  There’s no need to repeat the arguments as to the non-democratic character of international law-making or of global governance institutions.  Clearly the issue of legitimacy arises due to the expanded scope and reach of international/global law and governance.  For Peters, legitimacy means democratic legitimacy.  She usefully canvasses all the usual suspects in the democratic camp and comes up with her own distinctive position.  The strength of her position is that it avoids the substitution-alism of many models – cosmopolitan democracy does not replace democracy within states, global civil society does not replace domestic or global government, mechanisms of direct democracy do not replace mechanisms of representation or accountability.  Nor does her approach simply rest on the domestic analogy: she trys not to simply ratchet up democratic arrangements and mechanisms developed in democratic states to the globe or to international organizations (IOs) or in today’s parlance, global governance institutions (GGIs).  To be sure, she works with a strong conception of democratic principles—political equality, participation, inclusion of all governed, responsiveness and accountability of the governing actors and the sanction power of citizens to throw out politicians normally through elections.  But the dualistic conception is contrived to mesh with the dualism of the world order—i.e. as one that is and will remain composed of both states and individuals.  Thus against substitutes like theories of deliberation, participatory democracy or competitive democracy (ascribed to Dryzek, Pateman, and Pettit respectively) that allegedly should replace formal electoral democracy, she rightly argues that these do not on their own merit the label, democratic unless they hook up with formal i.e. electoral democratic mechanisms.

 How then to resolve the democratic deficit of international law?  So what is dual democracy?  Again, the constitutionalisation of international law in this chapter entails democratization which must occur on two distinct tracks. Read the rest of this entry…

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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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