Peter Danchin is Associate Professor of Law at The University of Maryland Law School.  His recent articles have been published in the Journal of Law and Religion, the Yale Journal of International Law, and the Harvard International Law Journal. His most recent book United Nations Reform and the New Collective Security (with Horst Fischer) has just been published by Cambridge University Press.  In 1999, he served as a foreign law clerk to Chief Justice Arthur Chaskalson of the Constitutional Court of South Africa.

Is there a human right to sufficient or adequate water?  If so, what is the right’s normative basis, its scope and content, and how might this differ in international law, constitutional law, and the domestic law and policy of States?  These were the questions recently before South Africa’s Constitutional Court in Mazibuko v. City of Johannesburg (also known as “the Phiri case”) decided on 8 October 2009, the country’s first test case on the right to water.

The case is of interest for a number of reasons.  First, it is the most recent precedent in South Africa’s closely watched economic and social rights jurisprudence following in the wake of such decisions as Soobramoney (1998), Grootboom (2001), Treatment Action Campaign (TAC) (2002), Modderklip (2005) and Olivia Road (2008).  Second, it sheds critical light on the debate over whether economic and social rights have minimum legal content or a “minimum core” as posited by the UN Committee on Economic, Social and Cultural Rights in its 1990 General Comment No. 3 on the Nature of States Parties’ Obligations.  And third, it provides a useful case study of both the potential and limits of strategic public interest litigation and the justiciability and enforcement of economic and social rights in the national sphere.

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Ken Anderson has an excellent, very interesting post regarding the US strategy of using drones for targeted killings of suspected terrorists in Pakistan and elsewhere (a topic we’ve addressed at the blog before). He argues that, as a matter of both law and policy, the current justification of the US government for its targeted killing practices is insufficient, because it relies far too much on IHL concepts like ‘combatant’ and IHL rules on targeting which are dependent on such concepts.

Such a justification is of course deeply problematic because IHL applies only in armed conflict, while the position taken by the Bush administration that the ‘war on terror’, or the US struggle again Al-Qaeda, is some sort of armed conflict unlimited in time and space to which IHL applies, is not very tenable. Unfortunately, the Obama administration has also used IHL in this way, if with some adjustments, while in Hamdan the US Supreme Court ruled that Common Article 3 was applicable and that the US is in some sort of global, amorphous non-international armed conflict with Al-Qaeda. (The Hamdan judgment is however quite unclear, and would bear other readings as well, such as that there is a non-international armed conflict between the US and Al-Qaeda in Afghanistan).

There has long been a consensus outside the US legal academia that IHL is inappropriate to regulate the fight against terrorism, outside specific situations where armed hostilities actually occur and have a certain level of intensity, as in Iraq or Afghanistan. For God’s sake, just how absurd would it be to look at the most recent Christmas/Underwear Bomber as some sort of ‘unlawful combatant’ in a global armed conflict?

Ken has thus valiantly argued on several occasions that the US government should desist from invoking IHL in this unconvincing manner, and that it should rely instead on its customary right of self-defense to justify the targeted killings of suspected terrorists:

That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied. And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves. That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense — if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.

Now, assuming that targeted killings of certain suspected terrorists are desirable in at least some cases as a matter of policy, is Ken’s self-defense argument for justifying them sufficiently persuasive? I respectfully submit that it’s not.

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Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia“ , Andre de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence” and Zoran Oklopcic’s “Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia“

Under the heading of ‘rescuing Russians as a case of self-defence’, the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia quite sensibly and with good cause rejects this claim on the part of Russia and observes that attacks on nationals or members of the nation abroad cannot be equated to an attack against the territory of a State. However, in its application to the specific case, it then observes (volume 2, p. 288) that:

“[t]he constitutional obligation to protect Russian nationals (…) cannot serve as a justification for intervention under international law. Domestic law can in principle not be invoked as a justification for a breach of an international legal rule” (italics not in original; the attached footnote 211 then refers to article 26 VCLT, which is probably intended as a reference to article 27 VCLT).

But the Report then surprisingly, not to say shockingly, appears to envisage the possibility that:

“[a]t most, domestic constitutional law could be invoked as a defence against obligations imposed on a state by international law if those obligations contradict core elements of the national constitution” [italics not in original].

 The Report then claims that article 61(2) of the Russian Constitution, which proclaims that “[t]he Russian Federation guarantees its citizens defence and patronage beyond its boundaries”, is not a basic principle of Russian constitutional law.

Aside from the already mentioned fleeting reference in footnote 211 to article 26 VCLT, laying down the principle of pacta sunt servanda, the Report fails to address article 27 which precisely excludes an appeal to internal law as a justification for the non-performance of treaties (the reference in that provision to article 46 VCLT is not relevant for present purposes, as it only allows an appeal to rules of internal law of fundamental importance for the expression of consent to treaties). Nor is any thought given to the provision of article 3 of the Draft on the Responsibility of States for Internationally Wrongful Acts (DSR; cf. also article 32 DSR) which observes “… The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.” Similar provisions have been introduced into the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (article 27(2-3)), and the Draft on the International Responsibility of International Organizations (DIOR, adopted on first reading by the International Law Commission this year (article 31(1) DIOR; inclusion of a provision into the DIOR similar to article 3 DSR has been rejected by the ILC, cf. ILC, Report 2009, pp. 54-55). 

What has moved the drafters of the Report to even consider allowing the invocation by a State of its own constitutional law as a justification for non-observance of international obligations cannot be fathomed. Read the rest of this entry »

Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa

Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia“ and de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence“

What is the role of self-determination in regulating territorial conflicts in the post-Cold War world? According to the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: there is no such role. The Report takes a conservative view on the principle of self-determination claiming that it can justify the emergence of new states only in the contexts of decolonization. While noting that there is a body of scholarship that understands self-determination in a remedial way—as a right of seriously persecuted groups to secede from an oppressive state, the Report claims that documents that purport to give backing to this interpretation, such as the Friendly Relations Declaration, are merely “ a deviation from general state practice” (138).

The Report is not without ambiguities, and quite possibly inconsistencies. In Chapter 3 of Volume 2, the Report discusses the criteria for statehood consisting of objective and ‘additional’ criteria. The objective criteria are a defined territory, a permanent population, and an effective government. Interestingly, the Report mentions self-determination as an additional “standard for the qualification of an entity as a state”, which together with prohibition of the use of force and the degree of recognition of the entity ought to inform the judgment of states about whether or not to recognize the nascent entity as an independent state. From this list, one might infer that the officials of foreign states ought to make a judgment about whether the emergent entity has been created in accordance with the principle of self-determination. Given the Report’s opinion on the geographical and historical scope of self-determination, such a judgment couldn’t apply to the states that arose outside of a decolonization context. A more charitable (if questionable), reading of the ‘additional standard’ would be to understand self-determination in its internal capacity. Understood this way, the “qualification” of whether a state exists would turn on whether the new entity provides mechanisms for participation, representation and political equality. The Report does maintain the possibility that the additional criterion of self-determination is not necessarily a legal norm, but a political standard. Such an interpretation would show the way out of inconsistency, but would immediately open up a more difficult question: How can we access the putative normative promise of self-determination now that self-determination had become a defunct legal principle unable to tell us when to trigger the creation of a new polity, how to draw its boundaries, and what degree of recognition to accord to such an entity?  Read the rest of this entry »

Last week, Belgium initiated proceedings in the ICJ against Swizterland in a dispute raising issues of private international law and of the relationship between public international law and private international law. The dispute concerns:

“the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters . . ., and the application of the rules of general international law that govern the exercise of State authority, in particular in the judicial domain, [and relating to] the decision by Swiss courts not to recognize a decision by Belgian courts and not to stay proceedings later initiated in Switzerland on the subject of the same dispute”. [See Press Release here]

The dispute arises out of the parallel proceedings pursued in Belgium and Switzerland by the main shareholders of the former Belgian airline – Sabena (which is now in bankruptcy). Those shareholders included the Belgian State (as well as companies owned by Belgium) and the Swiss airline formerly known as Swissair. After proceedings were brought in the Belgian courts by the Belgian shareholders against the Swiss shareholders, the latter in turn brought proceedings in the Swiss Courts. Belgium asserts that

“the Swiss courts, including in particular the Federal Supreme Court, have however refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention and ‘the rules of general international law that govern the exercise of State authority, in particular in the judicial domain’.” [See Press Release here]

It is rare for the court to have to deal with a case that raises issues of private international law but this has happened before – in the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (1958). What appears to be particularly interesting about the present case is that it raises issues about the impact of public international law on private international law. This is because Belgium argues that Swiss Courts are under an obligation to stay proceedings brought in that country not only as a result of the Lugano Convention but also because this result is dictated by the rules of general international law relating to jurisdiction. According to Belgium, the failure by Switzerland to stay the proceedings is a breach of ”the rule of general international law that all State authority, especially in the judicial domain, must be exercised reasonably.” 

Belgium has requested that the case be heard by a Chamber of the Court rather than by the full Court. This case is the third to be initated in the ICJ in 2009. Interestingly, the first was also brought by Belgium (against Senegal) [see EJIL:Talk! commentary on that case here, here and here]. The second case brought by Honduras against Brazil has not been entered on the Court’s general list of cases (see EJIL:Talk! commentary here)

Appropriately enough in light of our recent discussions of international constitutionalism, today the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (our previous coverage here; judgment here, but the HUDOC link might not be permanent). The case is by any definition a landmark for Strasbourg, not to mention Sarajevo.

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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. Read the rest of this entry »

Professor Gráinne de Búrca is Professor of Law at  Fordham Law School, and during 2009-10 is a Straus Inaugural Fellow at NYU Law School.  She was previously Professor of Law at the European University Institute and Lecturer in Law at Oxford University

One of the aims of Ruling the World?, the interesting collection of essays which Jeff Dunoff and Joel Trachtman have assembled, is to try to understand the increasingly common practice of referring to instances of international or transnational governance in constitutional terms.   What does the vocabulary of international constitutionalism signify, and what is it intended to mean?   They argue for clarity on this basic analytical issue, and propose an understanding of ‘international constitutionalism’ in functional terms.   International constitutionalism should, they argue, be understood to refer to norms which enable or constrain the production of international law.   Their account is entirely neutral (international constitutionalism as a process with no particular teleology) and resolutely functional, such that even their description of the normativity of international constitutionalism has an instrumental rationality. Thus they argue that international constitutional norms should be assessed according to “their ability to enable individuals and states to advance the international public policy goals that they aim to achieve”.  

Neil Walker’s concern with international constitutionalism, on the other hand, is with the normative implications of drawing on the language of constitutionalism in the first place to describe the growth and mutation of forms of legal authority across the transnational domain.  The implicit suggestion here, contra Dunoff and Trachtman, is that the development of international constitutionalism is not a natural or a neutral process.  In other words, the decision to frame a development in the language of ‘international constitutionalism’ is a conscious and consequential one, given the symbolic capital of the discourse of constitutionalism and its deep domestic origins. A similar point has recently been made by Stepan Wood and Stephen Clarkson in their rather more sharply critical analysis of ‘supraconstitutional’ regimes such as the NAFTA (“NAFTA Chapter 11 as SupraConstitution“). Like Dunoff and Trachtman, they define international constitutionalism in functional terms but, unlike Dunoff and Trachtman, they do so by reference to what they describe as the function of supraconstitutional regimes in constraining and transforming domestic law and constitutionalism.  Like Neil Walker, they also emphasize the symbolic capital of constitutionalism in noting that almost all of those who use the language of constitutionalism draw on liberal political theory with implicit or explicit reference to concepts such as the rule of law, constraint of power, protection of rights and democratic deliberation. 

Already here, amongst three recent sets of commentators sharing a similar analytical approach to the phenomenon of international constitutionalism, we see three different normative evaluations.   Read the rest of this entry »

Professor Neil Walker is Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh

The intense if highly variable focus on constitutionalism in the Ruling the World collection is a reflection of significant changes in global legal relations with which we are only beginning to come to terms. Once upon a time constitutional law was part of a hegemonic pair of dominant legal frames for the Westphalian world. Constitutional law framed the legal authority of states – understood as mutually exclusive sites of sovereign power – while international law was engaged in the relentless and relentlessly precarious business of framing legal authority between states (who were in many respect in unequal or even imperial relations inter se).

 The world has changed. States are very far from being marginal players, but they do not exert the comprehensive legal and political authority they once did. This poses a challenge to international law and constitutional law alike. For each, the post-Westphalian moment both poses a threat and provides an opportunity. International law is in some respects disorientated and decentred by the erosion of state authority. It has to deal with the rise of private power and of forms of supranational authority. It also has to cope with the related matter of the advent of new forms of functional specialisation – of more or less self-contained regimes in such as environmental, trade and criminal law to which states increasingly defer and where general principles of international law are of fading authority. But privatization, transnationalism and fragmentation also afford new opportunities.  A flexible international law can seek to embrace these. If international law has always been about the heterarchical dimension in legal relations – about law between powerful entities – then the new global archipelago offers new possibilities for the adaptation of international law.

For constitutional law the erosion of state authority poses an even more direct challenge. If constitutional law was embedded in the modern state, what happens when the state itself becomes disembedded from its dominant position in the global order? Does constitutional law just become less relevant, ceding ground to the new forms of private and supranational authority? Or, as in the case of the EU or the WTO or the UN, can it become the new framing discourse for each of these entities considered discretely?  Can we think of such supranational organisations in constitutional terms, and can we even begin to think of private or hybrid bodies (such as the internet’s ICANN) in such terms? Can we learn and borrow from state constitutional discourse sufficiently to bridge the legitimacy gap opened up by the erosion of state constitutional authority?  In other words, can the rise of a new constitutionalism be an answer to the decline of the old constitutionalism?

In my own essay in the collected volume, I ask this question of the EU. My answer is a mixed one. Modern state constitutionalism, I argue, involves a fusion of number of framing registers. Read the rest of this entry »

In his post Nico Krisch raises some important points that allow for the clarification of some core ideas. I have little to add to the part of his comments that describe the  “right starting points” and “important insights” but would like to address and hopefully clarify some points that concern the “more problematic turn”. That clarification might not lead to an agreement, but it might help provide a deeper understanding of cosmopolitan constitutionalism and its connection to constitutionalism more generally. My comments will address first the connection between constitutionalism and “the dream of reason” (1)  and second the relationship between constitutionalism and the law and politics divide (2) and, very briefly (3) the claim that international law is different.  Read the rest of this entry »