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. This functionalist approach directs attention to the purposes that international constitutional norms are intended to serve. We emphasize three of these functions. First, international constitutional norms authorize or enable the creation of international law. Examples would include treaty provisions that endow international bodies with the ability to create secondary norms, as we see in the EU. Second, some international constitutional norms constrain the production of international law. Thus, jus cogens norms act as a limit on the production of international law. Similarly, European Court of Human Rights decisions holding that ECHR norms trump other treaty commitments by member states gives the Convention a constitutional dimension, as it constrains the making of inconsistent international norms.
We also identify a third category of international constitutional norms. These norms arise in response to perceived deficiencies in domestic constitutional orders, particularly those that arise as a result of globalization. The Solange jurisprudence provides an example of what we have in mind. In Solange I, the German Federal Constitutional Court faced a claim that an EC law violated rights guaranteed by the German Constitution. Although the ECJ had previously held that EC law was supreme, the German court held that it could nevertheless review EC law for consistency with the German constitution, particularly as the EC had not developed a fundamental rights jurisprudence. In response, the ECJ began to review Community enactments for consistency with fundamental human rights, notwithstanding the lack of explicit textual support for this position in EC treaties. We view this jurisprudential innovation by the ECJ as an example of an international regime responding to pressures for “constitutional” norms that will constrain international law-making activity in areas previously governed by domestic constitutional norms. Ongoing controversies regarding the Security Council’s ability to add names to a list of terrorist groups, triggering the imposition of economic sanctions, may reflect a similar dynamic.
Adopting this functional perspective, it is apparent as a descriptive matter that the international legal order has many constitutional features, including customary rules of international law relating to legislation through custom and treaty; provisions addressing the U.N. organs and especially the Security Council as sources of law and of executive authority; and the implicit and explicit rules that govern law-making by the ICJ and other tribunals. This is a set of constitutive features that indeed fulfil, at a rather low level, the legislative, adjudicative, and executive functions described in many constitutions. We also see international legal rules that provide some substantive prohibitions and rights that are also associated with domestic constitutions.
As a normative matter, these various constitutional norms can and should be evaluated in terms of their ability to enable individuals and states to advance the international public policy goals that they aim to achieve. No doubt, some changes to current constitutional features could enhance the ability of individuals and states to achieve their goals; thus constitutional rules do not only determine how international bodies absorb the need for change, but constitutional rules themselves should change over time. Hence we view constitutionalization as a process, and different international regimes exhibit greater or lesser degrees of constitutionalization over time. It is important to point out that this process has no particular teleology. Rather, the level of intensity and structure of constitutionalization at any given moment is determined largely by functional needs, which in turn evolve through social, economic, ideational, and technological change.
Here, as in so many other ways, the European project is instructive. The European Union is an example of independent sovereign states, and their citizens, agreeing to strong international institutions, and reducing their independence, to enhance the welfare of their citizens. As the Schuman Declaration of May 9, 1950 predicted, Europe was not built all at once, or according to a single plan, but was able to respond over time to on-the-ground needs through constitutional change. Europe demonstrates the validity of the functionalist vision. Of course Europe has involved a smaller numbers of states, with greater homogeneity of culture, economic development and preferences than exists in the broader world. However, this is all a matter of degree, and of scale, and our point is not that the world will or should look like Europe, but that the same questions asked about the utility of institutions and law-making processes, and their limits, in Europe can be asked today about the utility of institutions and law-making processes in the global setting. By labelling these questions “constitutional”, we are merely claiming that they affect the allocation of authority to international governance mechanisms, and the limits on allocation of authority to these governance mechanisms. We also claim that some of the ways in which international law has changed to perform constitutional functions that have earlier been performed by the state, but can no longer effectively be carried out by the state due to social, economic, ideational, and technological change, presumably in accordance with constitutional subsidiarity, are also “constitutional” in character.