The Constitution of Constitutionalism

From August 2010, Professor Daniel Bodansky will be Lincoln Professor of Law, Ethics and Sustainability at Arizona State University’s Sandra Day O’Connor College of Law. Previously, he was Emily and Ernest Woodruff Chair in International Law and Associate Dean for Faculty Development at the University of Georgia. In 2009 and 2010 he has been a Visiting Fellow at the Smith School of Enterprise and the Environment at the University of Oxford.

The recent appearance of two new books on international constitutionalism – Jeff Dunoff and Joel Trachtman’s Ruling the World (the subject of an earlier EJILTalk symposium) and the volume by Jan Klabbers, Anne Peters and Geir Ulfstein that is the subject of this symposium – suggests that constitutionalism is becoming the latest concept du jour in international law, following on the heels of legitimacy, legalization, and fragmentation.   Both books are the fruits of multi-disciplinary, international collaborations:  Ruling the World includes contributions from more than a dozen scholars from the US and Europe; likewise, The Constitutionalization of International Law grew out of an international conference in Kandersteg, Switzerland, organized by Anne Peters, involving lawyers, political scientists and economists, which was the subject of a special issue of the Indiana Journal of Global Legal Studies.  Both books involve top international law academics and are enormously valuable contributions to the field.

The newfound interest in international constitutionalism raises many questions:

• First, there are conceptual questions about the meaning of constitutionalism generally and international constitutionalism more specifically.  What is a “constitution,” what is “constitutionalism,” and what is the relation between the two?  How might constitutionalism translate to the international sphere?  What would an international constitution look like? Here it is useful to distinguish a thinner and thicker sense of a “constitution”?  On the thinner view, a constitution is simply the body of law that sets forth the fundamental (that is, superior and more difficult to change) rules of a political community.  A constitution both constitutes and constrains political power, by creating and setting limits on the basic institutions and decision-making processes of a regime.  The thicker view – embraced by Klabbers, Peters and Ulfstein – associates constitutionalism with a number of more specific procedural and substantive limits that reflect liberal political values, including democracy, separation of powers, fundamental human rights, and judicial review.
• Second, there are explanatory questions about the causes and effects of constitutionalism?  For example, what are the social preconditions of constitutionalism and are they present internationally?  Is constitutionalism possible only when there is a political community with a common history, language, and “public space”?  What explains the sudden upsurge of interest in constitutionalism among international lawyers?  Does this reflect actual changes in international relations, for example, – an actual growth in constitutionalism as a mode of governance?  Is it a reaction to increased concerns about fragmentation and illegitimacy in international law – an attempt to put international law on a stronger normative footing?  Can it be explained as an effort by European lawyers to extrapolate or generalize from the EU experience to global politics more generally?  Or does it have some other explanation?
• Third, there is the descriptive question: Is there, in fact, an international constitution?  Or, at least, is international law becoming more constitutional?  Is it developing constitutional aspects or dimensions?
• Finally, there are normative question about the proper role of constitutionalism in international law.  Should there be an international constitution?  If so, what should an international constitution look like?  How well does existing international law measure up when evaluated against the standards of constitutionalism?  And what changes are needed?

Of these various questions about constitutionalism – conceptual, explanatory, descriptive, normative, and meta — which do Klabbers, Peters and Ulfstein address?  In his introductory chapter, Jan Klabbers says that The Constitutionalization of International Law doesn’t aim “to demonstrate that a process of constitutionalization is actually taking place” (page 4), nor is it a book about international ethics.  Instead, he suggests that the aim is largely conceptual, namely, to examine what a constitutional international order would like – or, as he puts, it, to “provide the idea of constitutionalization with some hands and feet” (page 4).

But this modest self-description notwithstanding, the book in fact has many things to say about the full range of issues concerning constitutionalism, even if not always explicitly.  For example:

• Klabbers states that all of the talk about constitutionalization doesn’t exist only in the minds of lawyers (page 5), that “the international society would seem to be undergoing a process of constitutionalization” (page 7) and that the book aims to “make visible what might be called the invisible constitution of the international community” (page 4).   In a more limited fashion, Peters argues that “a sectoral constitutionalization” is taking place within international organizations” and that “a principle of openness of global governance forums for NGOs is emerging as a constitutional principle.”  These are descriptive claims about what is actually taking place in the world.
• Peters takes a largely normative approach, arguing (among other things) for proportional rather than equal voting by states in international organizations and giving NGOs greater voice (but not votes), including through the presumptive right to make written statements, file amicus curiaebriefs, and trigger certain non-compliance procedures.  Similarly, Ulfstein makes a variety of normative claims, including that:
  • “decisions of legislative character by the UN … should be adopted by the General Assembly rather than the Security Council” (symposium introduction)
  • “decisions in individual cases should be based on law rather than on political considerations” (ibid)
  • international tribunals should play a bigger role in developing international law, but need better election procedures and due process guarantees (ibid).
• Klabbers partially explains the interest in constitutionalism as a response to concerns about fragmentation and legitimacy (chapter 1, section 3), which I think is no doubt true.  As international institutions exercise more and more power, there is a greater need for checks and balances.  As Ulfstein notes, because a constitutional approach emphasizes the relationship between empowerment and control, it is attractive as a potential means of legitimizing the growing authority of international institutions.

The authors’ views on the full range of issues raised by constitutionalism are very welcome.  My only concern here is that, because the authors don’t always keep the different types of issues distinct, it is not always clear what kind of argument they are making.  For example, in her chapter on “Membership in the International Community,” Anne Peter states: “In a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community.”  Is this intended as a descriptive statement and, if so, what empirical evidence would count in favour or against it?  Is it a normative statement about how international relations should be ordered?  Or is it a conceptual statement about what international constitutionalism would entail?  I think Peters is intending to make a conceptual claim, combined with a normative assessment that such a constitutional order would be a good thing.  But, if so, it would be useful to make the conceptual and normative arguments more explicit.

Similarly, Klabbers identifies the requirements of a constitutional world order.  It “must respect pluralism in its different guises, it must be legitimate too,” and it will “have to come to terms with its own heterarchy” (page 44).  But what is the nature of these requirements?  Are they required as a normative matter, a conceptual matter, an empirical matter (given the existing nature of the international community), or some combination of the three?

The growing interest in constitutionalism reflected by the publication of The Constitutionalization of International Law raises the “meta” question:  What is the value-added of analyzing international law from the perspective of constitutionalism?  Is “constitutionalism” a helpful category in studying international law?  How does it compare with global administrative law (and to a lesser degree legalization) as a perspective for assessing and legitimating international governance?  In what ways do these perspectives differ and which is most relevant for international lawyers?

Peters argues for the value of a constitutionalist perspective, suggesting that it allows us to ask “the right questions of fairness, justice and effectiveness” (page 344), and provides “the best stocked reservoir from which responsible policies may draw and the most persuasive medium in which it may be articulated” (page 352).

The problem, however, is that constitutionalism is such a protean concept, with so many different interpretations, that it does not provide clear answers to many questions. Consider, for example, judicial review of Security Council actions.  In the United States, which is usually considered to have a strong constitutionalist tradition, courts have refused to review many types of decisions, including those relating to the use of force, on the ground that they are “political questions.” So constitutionalism, in itself, doesn’t necessarily dictate judicial review of all important issues.  Rather than argue whether judicial review of Security Council actions is a necessary feature of “constitutionalism,” we might do better to argue the pros and cons of judicial review directly.  Similarly, in considering the role of democracy in international governance, it might be preferable to argue the normative issues directly, rather than answering the question through the association of democracy with constitutionalism.

These concerns notwithstanding, The Constitutionalization of International Law represents a very thoughtful and valuable contribution to an important topic.   We need to understand better what constitutionalization could and should mean internationally, the degree to which it is taking place, the obstacles to its achievement, and the most promising ways forward.   The Constitutionalization of International Law advances our understanding of all of these issues.