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).
In the absence of democratically elected organs in international organizations, one is left with participation of states in the political organs of international organizations, and the indirect control of such decision-making through the democratically elected national constitutional organs – to the extent that member states are democratic. A democratic approach would militate in favour of plenary organs as the locus for undertaking legislative activities. Accordingly, decisions of legislative character by the UN, whether they concern preventing the financing of terrorism or access to weapons of mass destruction, should be adopted by the General Assembly rather than the Security Council.
Methods have been developed to circumvent the need for decision-making by consensus, such as leaving a possibility of reservation against majority decisions. We also find models of weighted voting. This may strike a balance between effective decision-making and the need for securing state consent. But the democratic deficit in international law-making may limit the powers from a normative point of view – and thereby the effectiveness of the international system to solve urgent international problems.
It has been argued that the rule of law is less relevant to international law since it is based on the consent of states. But as the role of consent becomes more tenuous it is increasingly acknowledged that this principle has a role also international law, whether to protect a minority of states or individuals against majority decisions. The principle requires that decisions in individual cases should be based on law rather than on political considerations. This may be achieved through the principle of separation of power. While it is difficult to separate decisions to use military force from political considerations, the listing of terrorist organizations is an example of decisions that should be sheltered from such considerations. Due process guarantees in the form of procedural principles become also more important. International organizations increasingly exercise power over individuals, including in territories under international administration. Such powers should be subject to respect for international human rights. Finally, a constitutional approach would call for increased judicial review of international decisions.
A constitutional system means that the different organs have defined competencies in a hierarchic organization. The international legal system is, however, fragmented. The absence of formal binding powers alleviates the difficulties represented by this fragmentation, but it makes it difficult with consistent policy-making. The fragmentation could be overcome by integrating different institutions, establishing a hierarchy between them, or defining their respective responsibilities (complementarity). States show, however, little inclination to embark on such processes. The diversity of international institutions may also have its benefits in allowing the possibility to design the institutions to the task at hand. This could be seen as arguments in favour of arrangements for coordination between the institutions – rather than a formal constitutionalization of their respective powers.
A constitutional system would also require that the international and national system work in a consistent way. As already stated, the focus has so far mostly been on the need to establish effective international institutions. Hence, the focus on the implied powers of such institutions and their possibility to develop their competencies through their practice. But with more extensive powers it is time to revisit also the limits for such powers. The principle of legality requires that the powers of international institutions are exercised on the basis of the consent of states through their ratification on the founding treaty. This means that this treaty also establishes restrictions for their powers. Furthermore, it should be acknowledged that the primary democratic legitimacy is found at the national, not the international level. This means that the principle of subsidiarity should be respected. Accordingly, decisions should not be taken at the international level unless the effects cannot be achieved through national decisions. This is, however, not argument against effective interpretation of the treaties establishing international institutions.
There are an ever-increasing number of international courts, in more substantive areas, and they increasingly have a compulsory character. They may interpret vague international rules in a dynamic way, and issue binding judgments. The international tribunals are probably the most advanced part of international law when it comes to empowerment.
The empowerment of international tribunals should also require comparable constitutional guarantees. First of all, it should be ensured that the judges have the necessary expertise and independence. The current elections procedures have been characterized as highly political. This would call for more elaborate nomination and election procedures. Improved procedural guarantees in the form of both written and oral proceedings, transparency and fact-finding procedures may also be required.
The hierarchical order of national orders shall serve the finality, consistency, and implementation of the courts’ decisions, in short the effective constitutional function of the judiciary. The diversity of the international judicial architecture increases, however, with the rising number of specialized tribunals – with no supreme court.
There are, however, only few examples of problems related to competing jurisdiction between international tribunals. Such jurisdictional problems may also be alleviated through the principles of litispendence and res judicata. Conflicting jurisprudence may only occur in situations of competing jurisdictions. A more actual danger is inconsistent jurisprudence. But this may be lessened to the extent that international tribunals use judgments by other tribunals as precedents.
Thus, the problems with a fragmented judiciary should not be overstated. Possible ways to deal with this include, as with international organizations, integration of different international tribunals, a hierarchic relationship, or complementarity in their respective substantive scope. A general redesign of the international judicial architecture will, however, hardly find the necessary political support. And, as with international organizations, it should also be pointed out that a diversified international judiciary has its advantages. The burgeoning of international tribunals should in itself be seen as an aspect of constitutionalization. What is more, the dearth of a formal hierarchy does not necessarily prevent international tribunals from acting in a functionally constitutionally manner.
The relationship between international and national courts is characterized by formal dualism. International tribunals are supreme at the international level whereas national courts have the final decision in the domestic system. Dualism is, however, not a good description of practice. International law is increasingly becoming part of national law.
There is no sign of a constitutionalized global judicial system of supranational character. But the system may still work as an integrated system in practice. This requires, however, that both the international and national judiciary define their respective roles. International tribunals should, while upholding the effectiveness of international obligations, respect the principle of subsidiarity as regards the relationship between states and their citizens. National courts should neither be too defensive or antagonistic when it comes to respecting judgments international judgments, but rather take active part in the interpretation and development of international law. To the extent that international tribunals and national courts acknowledge their respective functions in the interpretation and application of international law – although tensions will inevitably arise – the combined international and national judicial judiciary may in practice work as a constitutionalized system.
How should the need for democratic control and the independence of international tribunals be balanced – both in relation to national and international law-makers? There has been criticism of constitutional review by national supreme courts (the counter-majoritarian argument). Since treaties are more difficult to amend than constitutions, it could be argued that it is even more reason to be sceptical of international tribunals restricting national democratic freedom. International tribunals are furthermore not elected by national constitutional organs and are not accountable to such organs. This criticism may be valid even though judgments by international tribunals are only binding at the international level.
But, first, international regulation requires restrictions on national freedom. Such mutual restrictions have been accepted through states’ ratification. There may also be matters that are considered of such fundamental importance that national policy-makers would see them protected against interference by future national legislators, i.e. a form of self-binding. But international tribunals should take due account of the principle of subsidiarity, while ensuring respect for international obligations.
Finally, the absence of an international legislator may be taken both as an argument for and against international judicial activism. Since we do not have an effective legislator, there is more need for international tribunals to develop international law. On the other hand, there is no legislator to control the activities of such tribunals. The objectives of the treaty establishing the tribunal may, however, justify a dynamic interpretation by the tribunals, e.g. if the treaty shall contribute to more unity among the states parties, or protect human rights. It could be argued that the negative integration between states represented by international restrictions, increasingly specified by international tribunals, should be compensated by positive integration through international law-making powers. States are, however, reluctant to accept increased international law-making.