Chapter 7 of The Constitutionalization of International Law discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous. The chapter counters these objections.
1. The term ‘constitution’ might be a misnomer when applied to the international sphere. Also, the danger of blowing up an academic paper tiger is very real. Global constitutionalism as an academic agenda should follow the middle path between merely self-dignifying the status quo on the one hand and hanging onto pipe dreams on the other. In order to gain acceptance in the political realm, global constitutionalists might highlight the current situation of global interdependence. With such a state of affairs, national and global public interests tend to converge more and more, national interests and universal idealism are not necessarily in opposition. Given this convergence of global and national, an ‘idealist’ global constitutionalism which promotes global interests, may even, at least in the long run, further national economic and political interests as well, although some states benefit more than others.
2. The constitutionalist reading of international law might raise dangerously seductive over-expectations. The vocabulary makes it virtually impossible to escape from the assumptions that go with it. Social legitimacy might be artificially constructed through the use of constitutional language. The response is that ‘constitutionalism’ is not a ready-made answer, but – on the contrary – a perspective which might help the right questions of fairness, justice, and effectiveness to be asked.
3. Another concern is that the concept of international constitutionalism suffers from oversell and vagueness. International law, politics, and economics are being mixed, if not confused. Indeed, there is the danger that reliance on constitutionalism is actually counterproductive because it may postpone rather than encourage concrete debates on concrete problems, such as decision-making in the WTO, the composition of the UN Security Council, or how to liaise national parliaments to the UN. However, the added value of the constitutionalist paradigm might lie in its comprehensive nature. The normative claim is that the different features of constitutionalism as a whole are more than the sum of its parts. More inclusive and transparent decision making and judicial review should go together, and in combination they take on a special normative significance. Therefore the constitutionalist reconstruction does possess an additional explicative and prescriptive value. It reminds us of the interlinkage of the various features of constitutionalism, and calls for complementing the existing constitutional features of international law (such as judicial review of governmental acts) with missing ones, such as democracy and judicial review of acts of international organizations. To some extent, there is indeed constitutionalist bootstrapping.
4. Another concern is culturalist. The constitutionalist reading of international law may be genuinely anti-pluralist. It may have a uni-civilizational, notably European, bias built into it. In response it might be pointed out that while constitutionalist thought has in historic terms been developed in Europe, it is a reaction to the universal experience of domination by humans over other humans. Even in 18th- and 19th-century Europe, constitutionalism was not a confirmation of European culture, but asserted against the dominant culture and the establishment.
A ‘moderate’ constitutionalist reading in no way implies a uniform, coherent world constitution, and certainly does not imply the quest for a world state. The idea is not to create a global, centralized government, but to constitutionalize global (polyarchic and multi-level) governance. This project must indeed take more fully into account the needs and interests of developing countries and their populations.
5. The constitutionalist reconstruction of international law might be a reasonable strategy to compensate the de-constitutionalization on the domestic level which is effected by globalization and global governance. Globalization puts the state and state constitutions under strain. Global problems compel states to co-operate within international organizations, and through bilateral and multilateral treaties. Previously typically governmental functions, such as guaranteeing human security, freedom and equality, are in part transferred to ‘higher’ levels. Moreover, non-state actors (acting within states or even in a transboundary fashion) are increasingly entrusted with the exercise of traditional state functions, even with core tasks such as military and police activity. All this has led to governance which is exercised beyond the states’ constitutional confines. This means that state constitutions can no longer regulate the totality of governance in a comprehensive way. Thereby, the original claim of state constitutions to form a complete basic order is defeated. National constitutions are, so to speak, hollowed out; traditional constitutional principles become dysfunctional or empty. This affects not only the constitutional principle of democracy, but also the rule of law, the principle of social security, and the organization of territory. In consequence, if the basic principles of constitutionalism are to be preserved, one must ask for compensatory constitutionalization on the international plane.
6. The constitutionalist reading of international law contributes fresh arguments to an old controversy which recently popped up again, namely the controversy whether international law is real ‘law’. The new deniers of international law (Völkerrechtsleugner) justify the ostensibly non-legal character of international law with the absence of hard enforcement mechanisms and with the democratic deficit of international law. The constitutionalist approach is useful here because it helps to overcome the narrow focus on sanctions and on top-down enforcement.
Also, the interpretation of particular norms and structures as ‘constitutional’ may provide an interpretative guideline. For instance, a constitutionalist approach to reservations to human rights treaties leads to admit them only restrictively by interpreting Article 19 lit. c) VCLT extensively: Reservations will presumably contravene the ‘object and purpose’ of such a treaty, whose purpose is to protect human rights effectively. They will therefore be presumptively inadmissible and also severable from the treaty, which should remain in force and fully bind the parties without that reservation. A constitutionalist-minded international lawyer will, to give another example, determine the supremacy of international law over domestic constitutional law in a non-formalist way. She will pay less attention to the formal sources of law, and more to the substance of the rules in question. In a constitutionalist perspective, the ranking of the norms at stake must be assessed in a more subtle manner, according to their substantial weight and significance.
7. Another objection is that global constitutionalism conveys a false necessity and false rigidity that it is too a-political or pretend to be above politics. My response is that law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics. In consequence, constitutionalism is also a political, not simply an apolitical, project (although it does suggest that there is a sphere ‘above’ everyday politics). So paradoxically, and in my mind laudably, the call for constitutionalism triggers precisely the contestation and politics it is said to pre-empt.
A related objection against the constitutionalist reconstruction of international law is that this reading condones an impoverished, legalist (judicially made), a-political conception of constitution. Admittedly, the constitutionalization of international law has been lopsided. The process has so far been adjudicative rather than deliberative.
However, this critique, although it may be formulated as a critique of global constitutionalism, is not in fact genuinely concerned with the constitutionalist reading of international law. The pertinent point is rather that global governance suffers from democratic deficits and – to some extent correspondingly – from too powerful courts. Global constitutionalism unveils precisely those deficits by introducing the constitutional vocabulary. The constitutional paradigm also inspires and eventually facilitates the search for remedies. In my view, the remedy against a too ‘legalist’ and too ‘judicial’ process of constitutionalization is not to stop that process, but to democratize it.
8. The core reproach of the new deniers of international law, the legitimacy and notably democratic deficit, must be taken seriously. But also in this regard, global constitutionalism is helpful, because it provokes the pressing question of the legitimacy of global governance.
Neither should global constitutionalism be used apologetically to bestow false legitimacy on international law. Nor should the complaint of the lack of legitimacy of international law undermine the authority of international law as such. Rather, the constitutionalist reading should clarify that the legitimacy of norms and of political rule does not depend on the structures of government or governance being exactly state-like. Global constitutionalism should and could help rather than hinder the revelation of existing legitimacy deficiencies in this body of law, without however throwing the baby out with the bathwater. Although constitutionalism may be invoked as a way of closing the debate, it in practice often has the opposite effect, namely that of opening up a richer and more productive normative debate. The reason is that the tradition of constitutionalism remains the best-stocked reservoir from which responsible politics may draw and the most persuasive medium in which it may be articulated. So global constitutionalism deploys, and this is crucial, a constructive, not obstructive, critical potential.