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.
In The Constitutionalization of International Law (“CIL”), Jan Klabbers, Anne Peters and Geir Ulfstein have produced a valuable addition to the burgeoning literature on international constitutionalization. Their important volume presents an admirable overview of many of the major debates in this area as well as a distinctive vision of constitutionalization’s features and virtues. In this short post we wish to highlight an important dimension of their argument; raise some questions about their analysis; and briefly outline an alternative approach to understanding international constitutionalization.
CIL’s account of constitutionalization is notable for the way that it subverts many standard international law dichotomies. While it is difficult to summarize their subtle arguments in a brief post, we might capture CIL’s constitutionalist approach by contrasting it with the vision of international law encapsulated in the PCIJ’s landmark Lotus decision.
Lotus famously held that “[i]nternational law governs relations between independent States. The rules of law binding upon states therefore emanate from their own free will . . . . Restrictions upon the independence of States cannot therefore be presumed.” CIL’s version of constitutionalization turns virtually every element of these claims inside out.
First, Lotus both presupposes and reifies a state-centric world-view. States are the primary subjects of international law; they are the creators of international rules, bearers of international legal rights and duties, and operators of international legal processes. International law is hence centrally concerned with the reciprocal rights and duties of states.
In CIL’s vision of a constitutionalized international order, the state is no longer the primary actor on the international legal plane. Rather, as Anne Peters emphasizes, “[i]n a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community.” As a result, constitutionalization transforms individuals from mere recipients or consumers of international legal rules into active agents empowered to participate in international law-making activities and to initiate judicial or arbitral proceedings to vindicate their rights (p. 161). Hence, one way that CIL’s constitutional vision flips the Lotus worldview is that the state is decentered, and individuals are the hub around which international law revolves. Notably, CIL’s focus on the individual is not the normative and methodological individualism that forms the basis for conventional economic thought, but a juridical claim regarding the relevant actors in international law.
Second, Lotus presupposes a certain understanding of the sources of international law. International legal norms “emanate” from the “free will” of states. The Lotus world, in short, is a highly positivist world, where law is rooted in state consent. Hence, international law can be ascertained and identified by examining the actual methods that States use to give effect to their wills, primarily through treaty and custom.
In contrast, CIL’s constitutionalized world order includes many types of processes and forms of normative pronouncements that do not fit easily into the traditional categories of international law. Behavior ranging from the informal efforts of international networks of civil servants to industry codes of conduct and private merchants’ lex mercatoria can be considered legislative, and the category “law” should be expanded to include “soft law instruments, non-legally binding agreements, or Memoranda of Understanding.” In addition, CIL’s constitutionalized world flips Lotus’s positivist world based on state consent. Although CIL recognizes the continuing relevance of consent, it also, as Jan Klabbers’ post emphasizes, opens the door to “law making by majority” and other forms of non-consensual law. Jurisprudentially, then, CIL’s constitutionalized legal order is a decidedly “non-positivist” legal order (p. 191).
Finally, the Lotus presumption that states retain freedom of action unless there is a positive law restriction (what CIL calls the “presumption of non-law” (p. 116)) is flipped on its head. As Klabbers notes, under a constitutionalized international order, the operative “presumption [is] that normative utterances are legally valid and legally binding, unless and until it can be demonstrated that they are not.”
Thus, CIL sets out a distinctive vision of international constitutionalization, one that in many ways is premised upon inverting the conceptual apparatus that supported Lotus.
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For international lawyers, then, Lotus stands for a series of propositions about the nature of the international legal order. For those with a more literary bent, the lotus will have different associations.
In Book IX of The Odyssey, strong winds blow Odysseus’s vessel off course, toward the “land of the Lotus Eaters.” Unsure of the reception his crew might find, Odysseus sends three crewmembers to explore the island. The men are well received; the natives “did them no hurt, but gave them to eat of the lotus, which was so delicious that those who ate of it left off caring about home, and . . . were for staying and munching lotus with the Lotus-eaters . . .; nevertheless, though they wept bitterly I forced them back to the ships and made them fast under the benches.
Then I told the rest [of the crew] to go onboard at once, lest any of them should taste of the lotus and leave off wanting to go home, so they took their places and smote the grey sea with their oars.” (Homer, The Odyssey, Book IX, lines 82-104 (Butler Translation)).
Juxtaposing the associations of these two understandings of Lotus raises a series of provocative questions: Might CIL’s inversion of the Lotus principles in the service of international constitutionalization tend to promote a form of idleness and lethargy in its readers? Is it possible that the invocation of international constitutionalism acts as a narcotic in the sense of diverting relevant actors from the hard work necessary to advance the values that CIL associates with constitutionalization? More specifically, might constitutionalization’s narcotic effects deprive those who consume it of constructive energy and free will?
CIL employs a heroic conception of the power of law; indeed at one point CIL claims that “to the extent the future can be steered at all, it can be done only by means of the law” (p. 104). And CIL’s constitutionalized international legal order is even more heroic; constitutionalization is associated with a variety of desired outcomes, including peace, legitimacy, rule of law, respect for human rights, accountability, and transparency.
Notably, however, CIL fails to establish two critical causal links. First, what will cause constitutionalization? Second, and even more important, CIL does not explain how constitutionalization will cause these desired outcomes. Constitutionalization is for CIL indeed a deus ex machina that can come from above and solve all problems. In this sense, the authors seem to pre-empt a set of discussions and decisions that should be the result of global political processes.
Presenting constitutionalization in this way significantly downplays the critical role of political action in achieving and sustaining the outcomes CIL associates with constitutionalization. Specifically, this vision of constitutionalization misleads by eliding the hard work and political engagement necessary to generate outcomes like the rule of law and respect for human rights. It is a mistake to think that the enactment of positive law, even constitutionalized law, automatically leads to these results. Instead, as Jutta Brunnee and Stephen Toope emphasize in Legitimacy and Legality in International Law, the enactment of positive law can usefully be considered a starting point, rather than a culmination. Alternatively, the enactment of positive law may punctuate social developments. A participatory process for production of positive law allows participants, including states and other persons, to evaluate for themselves each step. A scholar’s insistence on a particular step is undemocratic in the most fundamental sense; indeed it evidences the soft paternalism exercised by Odysseus when he decides, on behalf of his crew and against their wishes, to pull his men away from the Island of the Lotus Eaters. Only the social roots that are built through participatory processes enable law to exist and to endure. Thus, we wonder whether CIL’s treatment of the Lotus, and its understanding of constitutionalization, might produce a euphoria that distorts vision and obscures the need for the pragmatic, ongoing efforts required to make outcomes like rule of law and respect for human rights concrete achievements.
The arguments presented in CIL downplay the role of politics in another way as well. The volume places individuals at the center of the constitutionalized global community. Since individuals are rights-holders, CIL naturally devotes substantial attention to individuals’ ability to enforce those rights judicially and, more broadly, to the role of international courts. However, for a book that celebrates global democracy, the emphasis on global courts is paradoxical. CIL recognizes that “international adjudicators are even less democratically legitimate than the international regulators” (p. 292) and that the “accountability created by courts and tribunals” cannot compensate for a lack of democratic accountability (p. 340). CIL’s reliance on courts to produce and enforce normatively desirable constitutional outcomes underemphasizes the ways in which those outcomes can only be sustainably produced by ongoing political activity.
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CIL is just one of various recent efforts to describe international constitutionalization. Elsewhere, we’ve presented an alternative account that can be usefully contrasted with CIL’s. Our account does not presuppose a normatively desirable set of outcomes. Instead, it provides states and other relevant legal actors with a roadmap for how to achieve outcomes that they choose to pursue. Perhaps for this reason, we focus much less on judicial processes than CIL does, and much more on international legislative processes. Finally, we highlight the role of international politics in achieving anything close to a constitutionalized international legal order.
We do so by detailing a “functionalist” account of international constitutional norms. Notably, our “functionalism” is not the functionalism that CIL criticizes for obscuring the distinction between legal and non-legal norms (pp. 99-106). Rather, our functionalism focuses on what constitutional norms do, the roles they play, in response to the actually expressed needs of states and other international legal actors. Our functionalism, then, is very much of the “bottom up” variety, and is usefully contrasted with the “top down” identification of constitutional desiderata found in CIL. CIL asserts that the constitutionalization it envisages is “bottom up” by virtue of its reliance on individuals as the central actors. However, the best evidence of individuals’ actual wishes today is still derived inductively from state action, not deductively by scholars. Because the principles inherent in the Lotus worldview are rooted in and rely upon actual practice, they have a greater foundation in normative methodological individualism than those proposed by CIL.
Our purpose in highlighting these differences is less to argue that one approach is better than another than it is to underscore some of the ways that CIL helps to clarify and advance debates over international constitutionalization. CIL presents a challenging vision of constitutionalization that can be understood as reversing the vision of international law associated with Lotus. The question is whether, by eliding the sustained political efforts needed to produce outcomes such as rule of law and respect for human rights, CIL embraces an overly heroic vision of law and correspondingly downplays the hard work of making these aspirations a concrete reality.