Functionalism’s Shortfalls or How to Depoliticize Global Constitutionalism

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.

The editors proceed to identify three primary functions or purposes served by international constitutional law: an enabling function, a constraining function, and a supplemental or gap-filling function. If a “measure performs these functions, it is a rule of international constitutional law,” they write (10). On its face, this should generate a rather long list of candidates for the designation. They read these categories, however, in rather restrictive ways. Firstly, international human rights measures do not qualify as constitutional and are designated “ordinary international law” because they mostly regulate domestic legal actors not, presumably, institutions of international governance. This seemingly defines out of this discussion, for instance, the lively debate over the relationship between international human rights law and the WTO. It also runs counter to Gardbaum’s claim, in his contribution, that “human rights law is at the forefront of the developments driving the most general of the international constitutionalist claims” (234). They appear to want to confine potential candidates to those arising from and responding to pressures associated with economic globalization, rather than international human rights law or international environmental law developments per se (5). This seems a rather constrained approach.

The categories of enabling and constraining also turn out to be somewhat formalistic in their application. They are confined to framing mechanisms that either enable the production of international law or check its production – the UN Charter, they note, exhibits both features. The constraining version, they emphasize, is not about limiting domestic actors, such as national states, rather it is about constraining the production of international law. So a candidate for constraining constitutionalism turns out to be a proposed appellate body to review the decisions of ad hoc international investment tribunals.

So far, the discussion seems rather cramped. It is when the Dunoff and Trachtman turn to supplemental constitutionalism that a wider range of practices possibly come into view. It is here, significantly, that national and domestic actors can become the subjects of international constitutional law. These are norms that “arise in response to domestic constitutional deficiencies” and so fill in the gaps resulting from globalization so as “promote domestic constitutional values at the international level” (14). They cite, as examples, circumstances where international institutions, such as the European Court of Justice, respond to pressures “from below” to develop international constitutional norms.

Dunoff and Trachtman mostly are silent about international investment law as a candidate for supplemental constitutionalism. Admittedly, their discussion is not meant to be exhaustive, but it does seem to fit their criteria quite well. It has been characterized as a regime that supplements deficient national legal systems by instituting global practices of “good governance” (as per the late Thomas Wälde). I have elsewhere described the regime as constitution-like: it places legal limits on the authority of government, drawing on national constitutional norms and discourse like non-discrimination, due process, and property rights, is made difficult to amend, and is coupled with binding enforcement mechanisms. The rules and institutions are intended to supplant allegedly defective national constitutional systems with constitutional rules drawn from more functional (that is, more efficient) constitutional systems such as those of the United States and the member states of the European Union – the systems formerly viewed as generating universal “standards of civilized justice.” The approach that I adopt here, in contrast to the “discovery” and “project” approaches, takes up constitutionalism as a heuristic for critique (see my Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise).

If the investment rules regime qualifies as supplemental constitutionalism, what are the normative implications? Because they couch their prospectus for the study of international constitutionalization in functionalist terms, the editors do not begin to assess these implications. Indeed, they abjure any need to do so – the effort is described as “taxonomic” and not “normative” (4) (though they fudge this distinction a bit in their post). There is no escaping the distributional impact on the global legal balance of power, however, by designating certain norms and institutions “constitutional” and others not so. What a constitutionalized investment rules regime signifies is the successful globalization of particular national legal norms over other competing versions. These are norms, I should add, that represent highly romanticized versions of how capital-exporting countries have developed over time.

To the extent that capital exporting states have been able to constitutionalize the world-wide web of bilateral investment treaties, then they will have won over competing formulations, ones for instance represented historically by the New International Economic Order or being considered by capital-importing states in the global South (i.e. Ecuador or South Africa). This is not only a formal legal victory but a cultural one as well. The project here (and for allied rules and institutions we associate with economic globalization) is to establish thresholds of tolerable behaviour beyond which no states may step. It is about establishing boundaries, cabining options and, ultimately, constraining democratic practice. If accepted as such by political actors, agents of the state, and public opinion leaders then policy options narrow and alternative models, beyond the mythical one of free markets, are made much more difficult to imagine. The admitted endgame for proponents of the investment rules regime, after all, is to guarantee rights not only for foreign investors but for nationals as a way of reducing domestic investors’ “inequality” (the late Thomas Wälde again).

What is missing, then, is an assessment of the way in which this designation elevates particularistic legal norms to the level not only of “international” or “customary international” law but of “international constitutional law.” In his contribution to the volume, Dunoff addresses the self-defeating nature of dressing up the WTO in constitutional garb as it sparks “precisely the contestation and politics that it seeks to pre-empt” (179). There is a politics to this definitional exercise that does not get addressed in this rather bloodless taxonomic effort but which, as I have suggested, is inescapable. In this way, Dunoff and Trachtman’s framing exercise is both enabling and constraining and in need of supplementing.