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Functionalism’s Shortfalls or How to Depoliticize Global Constitutionalism

Published on December 11, 2009        Author: 

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David Schneiderman is Professor of Law and Political Science at the Faculty of Law, University of Toronto. His publications include Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (Cambridge University Press, 2008).

Dunoff and Trachtman’s edited volume is a welcome addition to the growing literature exploring linkages between constitutionalism and globalization. With few exceptions, the volume is confined to contributions that consider constitutionalism ‘beyond the state’ as a development to be lauded and defended. Most of these authors, as David Kennedy observes in his contribution, draw on constitutionalism not only for the purposes of “discovery” but for promoting a “project” (40). The editors, in their opening essay (see here and here) and post on EJIL-Talk! (to which I will confine my comments) choose to weigh in on the “discovery” side by adopting a “functional” approach to international constitutionalization. This seemingly has the advantage of being largely descriptive, taking the birds-eye view, about the lay of the land in an age of economic globalization.

There is an advantage to adopting a functional approach. It enables Dunoff and Trachtman to describe phenomenon only now coming clearly into view. It facilitates tracing the outlines of an international constitutional order that is only partial – a constitution, as has been said of the EU, of bits and pieces. It is one preferable to the “check-list” approach Deborah Cass, for instance, adopts in her book on The Constitutionalization of the WTO. Generating an exhaustive list of criteria drawn from national constitutional systems surely disqualifies most emerging non-state forms of constitutionalism both below and above national state levels. Methodologically, then, this is a sound way to proceed. Read the rest of this entry…

 
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Ruling the World? Constitutionalism, International Law and Global Governance

Published on December 10, 2009        Author: 

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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.

How should we understand international constitutionalism?  This question has many descriptive, conceptual, and normative components:  Is international legal constitutionalism concerned with rules or with institutions – with substance or with process?  Is international constitutionalism a European ploy to remake the world in its image, or to restrain the power of the U.S.?  Perhaps most importantly, does international legal constitutionalism suppress useful political discourse and contention, or does it establish the necessary conditions for productive global politics, and the necessary safeguards against government overreaching?

Our recent book, Ruling the World? Constitutionalism, International Law, and Global Governance (RTW) addresses these and related questions.  The volume examines constitutional debates at various sites of global governance, including the UN, EU, WTO and elsewhere, and analyzes commonalities and differences in these debates.  It also examines the relationships between international and domestic constitutional orders, the challenges of constitutional pluralism, and the puzzle of democratic legitimacy.   RTW explores the fundamental assumptions and critical challenges in contemporary debates over international constitutionalization and sets out a comprehensive framework for understanding these debates.

RTW‘s essays make clear that the answers to the questions can only be developed within specific contexts and in relation to specific constitutional provisions.  Constitutions are not received at Mt. Sinai, but are created by people with varying visions, experiences, and interests.  Moreover, because the state is not the exclusive unit either of social interaction or of governance, constitutional orders exist above and below the state, in accordance with the principle of constitutional subsidiarity.   It follows that constitutionalization is not a one-size-fits-all affair, and that constitutionalization at the international level will inevitably be different, in terms both of substance and process, from constitutionalization at any national level.

Our contribution to Ruling the World? (see here and here) urges a functional approach to international constitutionalism.  Read the rest of this entry…

 
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EJIL:Talk! is One Years Old

Published on December 9, 2009        Author: 

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Today marks the first year anniversary of EJIL:Talk! A year ago we kicked off with an EJIL Debate between Robert Howse and Ernst-Ulrich Petersmann on “Human Rights, International Economic Law and Constitutional Justice”. One year on we continue that debate about constitutional discourse in international law with an indepth discussion, starting tomorrow, (see details) of Dunoff & Trachtman (ed.) Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge, 2009). Read the rest of this entry…

Filed under: EJIL, EJIL Analysis
 
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Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence

Published on December 9, 2009        Author: 

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Dr André de Hoogh is a senior lecturer in International Law at the University of Groningen. His Ph.D. dissertation (1995) dealt with the topics of obligations erga omnes and international crimes of State.  Recent publications have focussed on the powers of the Security Council, the attribution of conduct to States, legislative powers of UN peacekeeping operations, the war against Iraq, the Bush doctrine of pre-emptive self-defence, and jurisdiction of States.

The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, solicited by the European Union, covers an impressive breadth of topics ranging, aside from factual matters, from statehood, self-determination and secession, use of force, human rights and international humanitarian law. Having read the Report with appreciation and generally agreeing with its conclusions, nevertheless various queries and concerns may be raised by the Mission’s treatment of the regulation of the use of force in international law. Some concerns relate to the treatment of sources of international law, others concern matters of substantive analysis. This comment will consecutively deal with the applicability and interpretation of the prohibition of the threat and use of force in article 2(4) of the Charter, the requirement of a report on measures of self-defence to the Security Council, and the permissible goals of self-defence under international law.

The Applicability of the Prohibition of the Use of Force

The Report concludes that the use of force, in the Georgian-South Ossetian conflict, “is ‘inconsistent with the Charter of the United Nations’, and therefore the prohibition of the use of force is applicable to the conflict, for the following reasons.” Besides putting the horse behind the cart (after all, if the prohibition is not applicable, how could force be inconsistent with the Charter?), the reasons then set forth do not quite support the applicability of the prohibition in article 2(4) Charter. First to be mentioned in the Report is a clause in the preamble of the 1992 Sochi Agreement, which reaffirms “the commitment to the UN Charter and the Helsinki Final Act”. This is said to amount to Georgian acceptance of the applicability of the prohibition, because, though South Ossetia is not a party to the Agreement, the purpose of the Agreement is to “bring about a cessation of bloodshed” and achieve a settlement of the Ossetian-Georgian conflict. The Report considers, sensibly enough, the prohibition to be included in the reference to the Charter, but fails to consider the (legal) status of a clause in a preamble and does not, as such, account for the fact that the reference may be explained by Georgia and Russia being parties to the Agreement. Read the rest of this entry…

 
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Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia

Published on December 8, 2009        Author: 

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Dr Tarcisio Gazzini is Associate Professor at the VU University Amsterdam. He has previously taught at the Universities of Padova (Italy) and Glasgow (UK_. He is an alternate member of the ILA Committee on Non-State actors and a member of the editorial board of the Leiden Journal of International Law. His publications include The Changing Rules on the Use of Force in International Law, Manchester University Press (2005).   

The recently published Report of the EU’s Independent Fact-Finding mission on the conflict(s) in Georgia can be considered in many respects as a successful experiment and a significant contribution to the establishment of the causes of the conflict(s) and the violations of jus ad bellum and of jus in bello.

Although the report offers several elements for reflection to international lawyers, this short comment focuses on the legal status of South Ossetia and Abkhazia which is crucial for the purpose of attributing international responsibility for violations of international law committed by these entities and their forces; qualifying the armed conflicts between Georgia and these entities, and identifying the applicable law, including the rules governing the use of military force and humanitarian law.

Legal Status of South Ossetia and Abkhazia

The question is discussed essentially in the first two sections of Chapter 3. The report seems to accept the view – clearly predominant in State practice and literature – that recognition is not a constitutive element of statehood. (see for eg, the Arbitral Commission of the Peace Conference in Yugoslavia, Opinion No. 1, 31 ILM (1992) 1494, ‘the existence and disappearance of the state is a question of fact’.) As a result, statehood needs to be determined on the basis of factual elements or criteria, although these criteria, according to the report, have not authoritatively been defined yet.

The report continues by listing three ‘minimal pre-conditions’ for statehood: (1) defined territory; (2) permanent population and (3) effective government. It then refers to the respect of legal principles of international law, notably self-determination and the prohibition to use force, as ‘additional standards’ for the qualification of an entity as a State (pages 127-8). The reader may have the impression that an entity must satisfy cumulatively ‘minimal pre-conditions’ and ‘additional standards’ before claiming statehood.

The report introduces three categories of entities: (1) (full) states fulfilling the relevant criteria for statehood and universally recognised; (2) state-like entities fulfilling the relevant criteria, but which are not, or not universally, recognised; and (3) entities short of statehood not fulfilling the relevant criteria, or only some of them, or only in a weak form, but eventually recognised by one or more states (page 128). Read the rest of this entry…

 

EJIL:Talk! Discussion of Dunoff & Trachtman “Ruling the World? Constitutionalism, International Law and Global Governmance”

Published on December 7, 2009        Author: 

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Over the next couple of weeks, EJIL:Talk! will host a discussion of a recent book edited by Jeffrey Dunoff and Joel Trachman – Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge, 2009). This is a major work by leading scholars which examines constitutionalism and constitutional discourse in a range of areas of international law. According to the book’s publishers (Cambridge University Press):

Ruling the World?: Constitutionalism, International Law, and Global Governance provides an interdisciplinary analysis of the major developments and central questions in debates over international constitutionalism at the UN, EU, WTO, and other sites of global governance. The essays in this volume explore controversial empirical and structural questions, doctrinal and normative issues, and questions of institutional design and positive political theory. Ruling the World? grows out of a three-year research project that brought twelve leading scholars together to create a comprehensive and integrated framework for understanding global constitutionalization. Ruling the World? is the first volume to explore in a cross-cutting way constitutional discourse across international regimes, constitutional pluralism, and relations among transnational and domestic constitutions. The volume examines the core assumptions, basic analytic tools, and key challenges in contemporary debates over international constitutionalization.

Contributors to the EJIL:Talk! discussion will include Jeff Dunoff (Temple University), Joel Trachtman (Fletcher School of Law & Diplomacy), Andreas Paulus (Gottingen), Mattias Kumm (New York University/Harvard) and Neil Walker (Edinburgh Law School), all of whom are contributors to the book. Commentators on the book will include: Robert Howse (New York University), Gráinne de Búrca (Fordham/NYU), Nico Krisch (Hertie School of Governance, Berlin) and David Schneiderman (University of Toronto).

As always readers, are encouraged to join the discussion using the comments feature on the blog. For those who don’t yet have the book, you can find excerpts at the CUP site (see here) and on SSRN (see here).

The table of contents of the book is as follows: Read the rest of this entry…

 
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The Swiss Referendum on the Prohibition of Minarets

Published on December 2, 2009        Author: 

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 Anne Peters is Professor of Public International Law at the University of Basel, a position she has held since 2001. In the academic year 2004/05 she was Dean of the Faculty of Law. Prior to taking up the tenured post she was Assistant Professor at the Walther-Schücking-Institute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her Habilitation-Thesis “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe).

The constitutional context of the popular vote of November 29

On 29 November 2009, the Swiss people voted in a popular referendum in favour of an absolute prohibition of the construction of minarets on Swiss territory. The vote was 57.8 % in favour, and 23[1] of the 26 cantons were in favour of the prohibition. The turnout was 53.4 %, which is relatively high for Switzerland.

Currently, four minarets exist in this country, and one application for a construction permit is pending. The legal consequences for this pending application are not entirely obvious, whereas the consequences for future buildings of minarets are clear: Due to the popular decision, a new provision will be inserted into the Swiss Federal Constitution (Bundesverfassung/Constitution Fédérale)[2] which will enter into force immediately. The new Article 72(3) will be: “The construction of minarets is prohibited.”[3]

The federal referendum was triggered by a popular initiative launched in April 2007 by a group of 16 people, 14 of whom were members of the “Schweizerische Volkspartei” (Swiss Popular Party), whose political programme is partly directed against migrants.

Under the Swiss Federal Constitution, a federation-wide popular initiative can be launched by gathering 100’000 signatures of Swiss citizens (a population of roughly 7 million) within 18 months (Art. 139). Reaching this threshold was no problem in the case of the anti-minaret- initiative. The sufficient number of signatures was collected in July 2008.

Once the threshold had been passed, and the formal correctness of the proceeding had been verified by a governmental office, the material validity of the initiative was scrutinized before the text of the initiative itself was put to vote. The Swiss Federal Constitution prohibits popular initiatives which “infringe preemptory norms of international law” (Article 139(2)). It is incumbent on the federal parliament to examine whether this is the case or not (Article 173 (1) lit f.)). The reason for vesting the power of scrutiny in parliament and not in the federal court is respect for popular sovereignty. According to the framers of the constitution, the verdict of inadmissibility of an initiative, a verdict which obviously curtails popular sovereignty, should only be pronounced by that federal body which enjoys the most direct democratic legitimacy. Parliament is composed of the directly elected representatives of the people, whereas the Swiss federal court has only an indirect democratic basis (the judges being elected by the parliament).

In the case of the anti-minaret-initiative, the parliamentary decision was easy. The initiative affects the freedom of religion as guaranteed under the Swiss constitution and under Article 9 of the European Convention of Human rights (ECHR), Art. 18 of the Covenant on Civil and Political rights (CCPR), and the international legal prohibitions of discrimination (Art. 14 ECHR and 2(1) CCPR). However, it is quite obvious that these fundamental rights do not pertain to the body of ius cogens, as defined in international law, accepted by Swiss practice, because a large number of states do not accept religious freedom, and many have submitted reservations relative to religious freedom to the universal human rights instruments. In the Parliamentary Resolution on the admissibility of the popular initiative,[4] the Swiss Federal Parliament highlighted that the adoption of the initiative would entail a violation of international law. However, Parliament did not have the power to declare the initiative inadmissible and void, because the wording of the constitutional clause on the inadmissibility of initiatives is clearly limited to ius cogens.

Therefore, the initiative had to be put to a popular vote, and the government fixed the date of 29 November 2009. During the campaign, almost all political parties and the government recommended the people to vote against this initiative. The clear supportive result of 29 November was a big political surprise, because previous opinion polls had predicted only between 30 and 40 percent of approval, which would have not sufficed for an endorsement of the proposal. The clear outcome manifests a widespread diffuse fear of islamisation. The “victorious” Swiss popular party immediately announced to launch a second initiative targeted at a prohibition of burcas in the public sphere.

Domestic remedies against the prohibition

It is foreseeable that individuals will seek to challenge the new constitutional prohibition before the domestic judiciary. Clearly those persons will have ius standi who apply for a construction permit for minarets. Such an application will – due to the novel constitutional prohibition – necessarily be denied by the competent local authorities.

After exhausting the domestic remedies, such an applicant will be entitled to raise a constitutional complaint before the federal court with the claim that his or her freedom of religion has been violated by the refusal. The federal court (Bundesgericht) will not have any margin of discretion in deciding such a complaint, because the new provision prohibiting the construction of minarets has constitutional status. It therefore constitutes a constitutionally entrenched restriction of the constitutional rights guaranteeing the free exercise of religion (Article 15 of the Swiss Federal Constitution) and of the constitutional prohibition of discrimination on the ground of religion (Art 8(2) Swiss Federal Constitution). So far, the notion of “unconstitutional constitutional law” has not been accepted in Swiss constitutional doctrine. The prohibition of minarets has been adopted by the sovereign with the clear intention and in full cognizance of the curtailment of fundamental freedoms going with it. Therefore there seems to be no room for balancing in order to solve the conflict between the two opposing constitutional precepts.

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Filed under: EJIL Analysis, Human Rights