Handbook on Global Constitutionalism: Second Edition (Research Handbooks on Globalisation and the Law series) [2 ed.] 1802200258, 9781802200256

Table of contents :
Front Matter
Copyright
Contents
Contributors
Preface and acknowledgments
1. Introduction to the Handbook on Global
Part I Historical antecedents
2. Global constitutionalism: the ancient worlds
3. Medieval constitutionalism
4. Global constitutionalism in the early modern period: the role of empires, treaties and natural law
5. The Enlightenment and global constitutionalism
6. Modern historical antecedents of global constitutionalism in theoretical perspective
Part II Political and international relations theories
7. Cosmopolitanism and global constitutionalism
8. Liberal theory
9. Constructivism and global constitutionalism
10. Realist perspectives on global constitutionalism
11. Critical theory
12. The English School and global constitutionalism
13. Postcolonial global constitutionalism
14. Feminist approaches to global constitutionalism
Part III Legal theories
15. Natural law at the foundation of global constitutionalism
16. International legal constitutionalism, legal forms and the need for villains
17. Interactional legal theory, the international rule of law and global constitutionalism
18. The shifting relationship between functionalism and global constitutionalism
19. Global constitutionalism and international public authority in the crisis of liberal internationalism
Part IV Principles and practices
20. Global constitutionalism and the rule of law
21. Balance of powers
22. Constituent power in global constitutionalism
23. Human rights as transnational constitutional law
24. Proportionality as a global constitutional principle
25. Written versus unwritten: two views on the form of an international constitution
26. Transnational litigation networks: agents of change in the global constitutional order
27. Human rights, sovereignty, and the use of force
Part V Institutions and frameworks
28. International judicial review
29. Legislatures
30. Executive and exception
31. Federalism: from constitutionalism to constitutionalization?
32. The UN Charter and global constitutionalism?
33. Functionalism, constitutionalism and the United Nations
34. The European Union and global constitutionalism
35. The International Criminal Court and global constitutionalism
36. Global commercial constitutionalization: the World Trade Organization
Part VI New Horizons
37. Global constitutionalism and outer space governance
38. The political economy of global constitutionalism
39. Global religion in a post-Westphalia world
40. Constitutionalism and pluralism
Index

Citation preview

HANDBOOK ON GLOBAL CONSTITUTIONALISM

RESEARCH HANDBOOKS ON GLOBALISATION AND THE LAW Elgar Research Handbooks are original reference works designed to provide a broad overview of research in a given field, while at the same time creating a forum for more challenging, critical examination of complex and often under-explored issues within that field. Chapters by international contributors are specially commissioned by the editors, who carefully balance breadth and depth. Often widely cited, they present expert scholarly analysis and offer a vital reference point for advanced research. Taken as a whole they achieve a wide-ranging picture of the state-of-the-art. The volumes in this series examine the legal dimensions of issues arising out of an increasingly globalized world. Edited by leading scholars in their respective fields, they explore notions of global justice and global development along with the complexities of international institutions and private actors operating on a global stage. Taking as their common thread the impact of globalization on the world in which we live, they are unrivalled in their blend of critical, substantive analysis and synthesis of contemporary research. Each Research Handbook stands alone as an invaluable source of reference for all scholars of globalization. Whether used as an information resource on key topics or as a platform for advanced study, volumes in this series will become definitive scholarly reference works in the field. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com​.

Handbook on Global Constitutionalism SECOND EDITION

Edited by

Anthony F. Lang, Jr. Professor of International Political Theory, School of International Relations, University of St Andrews, UK

Antje Wiener Chair of Political Science especially Global Governance, Faculty of Business and Social Sciences, University of Hamburg, Germany and By-Fellow, Hughes Hall, University of Cambridge, UK

RESEARCH HANDBOOKS ON GLOBALISATION AND THE LAW

Cheltenham, UK • Northampton, MA, USA

© Anthony F. Lang Jr. and Antje Wiener 2023

Cover image: Hester Lessard, “Untitled”, July 2020. Photographed by Art Ink Print. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023945102 This book is available electronically in the Political Science and Public Policy subject collection http://dx.doi.org/10.4337/9781802200263

ISBN 978 1 80220 025 6 (cased) ISBN 978 1 80220 026 3 (eBook)

EEP BoX

Contents

List of contributorsviii Preface and acknowledgmentsxvii 1

Introduction to the Handbook on Global Constitutionalism: protecting rights and democracy while binding power Anthony F. Lang, Jr. and Antje Wiener

PART I

1

HISTORICAL ANTECEDENTS

2

Global constitutionalism: the ancient worlds Jill Harries

23

3

Medieval constitutionalism Francis Oakley

35

4

Global constitutionalism in the early modern period: the role of empires, treaties and natural law Martine van Ittersum

5

The Enlightenment and global constitutionalism  Chris Thornhill

6

Modern historical antecedents of global constitutionalism in theoretical perspective76 Michel Rosenfeld

PART II

46 59

POLITICAL AND INTERNATIONAL RELATIONS THEORIES

7

Cosmopolitanism and global constitutionalism Garrett Wallace Brown

8

Liberal theory Iain Ferguson

101

9

Constructivism and global constitutionalism Jan Wilkens

115

10

Realist perspectives on global constitutionalism Oliver Jütersonke

129

11

Critical theory Gavin W. Anderson

140

v

89

vi  Handbook on global constitutionalism 12

The English School and global constitutionalism Filippo Costa Buranelli

152

13

Postcolonial global constitutionalism Sigrid Boysen

166

14

Feminist approaches to global constitutionalism Ruth Houghton

185

PART III LEGAL THEORIES 15

Natural law at the foundation of global constitutionalism Mary Ellen O’Connell

208

16

International legal constitutionalism, legal forms and the need for villains Jean d’Aspremont

225

17

Interactional legal theory, the international rule of law and global constitutionalism240 Jutta Brunnée and Stephen J. Toope

18

The shifting relationship between functionalism and global constitutionalism Jeffrey L. Dunoff

19

Global constitutionalism and international public authority in the crisis of liberal internationalism Armin von Bogdandy, Matthias Goldmann and Ingo Venzke

253

265

PART IV PRINCIPLES AND PRACTICES 20

Global constitutionalism and the rule of law Mattias Kumm

294

21

Balance of powers Eoin Carolan

308

22

Constituent power in global constitutionalism Peter Niesen

318

23

Human rights as transnational constitutional law Samantha Besson

331

24

Proportionality as a global constitutional principle Anne Peters

346

25

Written versus unwritten: two views on the form of an international constitution363 Bardo Fassbender

Contents  vii 26

Transnational litigation networks: agents of change in the global constitutional order Jill Bähring

27

Human rights, sovereignty, and the use of force Sassan Gholiagha

PART V 28

373 395

INSTITUTIONS AND FRAMEWORKS

International judicial review Başak Çalı

410

29 Legislatures M.J. Peterson

424

30

Executive and exception William E. Scheuerman

437

31

Federalism: from constitutionalism to constitutionalization? Thomas O. Hueglin

448

32

The UN Charter and global constitutionalism? Michael W. Doyle

460

33

Functionalism, constitutionalism and the United Nations Jan Klabbers

477

34

The European Union and global constitutionalism Jo Shaw

490

35

The International Criminal Court and global constitutionalism Andrea Birdsall and Anthony F. Lang, Jr.

508

36

Global commercial constitutionalization: the World Trade Organization Joel P. Trachtman

519

PART VI NEW HORIZONS 37

Global constitutionalism and outer space governance Adam Bower

529

38

The political economy of global constitutionalism Christine Schwöbel-Patel

542

39

Global religion in a post-Westphalia world Susanna Mancini

556

40

Constitutionalism and pluralism Neil Walker

568

Index580

Contributors

Gavin W. Anderson was a Senior Lecturer at the School of Law, University of Glasgow, having previously taught at the University of Warwick. He undertook graduate studies at Osgoode Hall Law School, and the University of Toronto. In 2003–4, he was a Jean Monnet Fellow at the European University Institute, Florence, and he has also been a Visiting Fellow at the Centre for Comparative Constitutional Studies, University of Melbourne. His recent research focuses upon the contribution of the global South to debates on global constitutionalism, and he is the author of Constitutional Rights after Globalisation (Bloomsbury 2005). Jean d’Aspremont is Professor of International Law at Sciences Po School of Law, Paris and Professor of Public International Law at the University of Manchester. He is General Editor of the Cambridge Studies in International and Comparative Law, Director of Oxford International Organizations (OXIO) and series editor of the Melland Schill Studies in International Law. He has published widely in the field of international law and international legal theory. His work has been translated into several languages including Spanish, Portuguese, Russian, Mandarin Chinese, Hindi, Japanese and Persian. Jill Bähring is a doctoral student at the Chair of Global Governance and the Chair of Criminal Law, Criminal Procedure, International Criminal Law and Contemporary Legal History, both at the University of Hamburg, Germany. Her work focuses on the intersection between law and political science, especially normative change, with a background in constructivist scholarship. In her research, she focuses on actors’ normative application of legal provisions in national and international bodies and how this contributes to the formation of agency. Her current research project focuses on strategic litigation as a tool for normative change. Samantha Besson holds the Chair Droit international des institutions at the Collège de France in Paris and is also Professor of Public International Law and European Law at the University of Fribourg (Switzerland). She served as a Visiting Professor at the Universities of Zurich, Lausanne and Lisbon and at Duke, Harvard and Pennsylvania University Law Schools, and was a Research Fellow at the Wissenschaftskolleg zu Berlin and at the Institut d’études avancées de Nantes. She also taught in various capacities at the Hague Academy of International Law where she gave a special course La due diligence en droit international in January 2020 and will give the general course in July 2027. She is an associate member of the Institute of International Law and co-chair of the ILA Study Group on the International Law of Regional Organizations. Samantha Besson’s research interests lie at the intersection of general international law, European Union institutional law and political and legal philosophy, with a special focus on human rights law and theory. Andrea Birdsall is a Senior Lecturer in International Relations at the University of Edinburgh. Her work lies at the intersection of international relations and international law with a particular focus on human rights, international criminal justice and global governance. She is author of The International Politics of Judicial Intervention (Routledge 2009) and a number of

viii

Contributors  ix journal articles covering topics in human rights, the International Criminal Court and human rights law in the context of counterterrorism efforts. Adam Bower is Senior Lecturer (Associate Professor) in the School of International Relations at the University of St Andrews where he serves as Director of the Centre for Global Law and Governance and sits on the Steering Committee of the Institute for Legal and Constitutional Research. Additionally, he is a member of the Centre for Exoplanet Science at St Andrews and a Fellow of the Outer Space Institute, an international network of transdisciplinary space experts. His research sits at the intersection of international politics and law and examines how actors strategically engage with international institutions and how norms and legal rules in turn shape and constrain future policy choices in often unanticipated ways. Previous and current work explores these dynamics in the fields of arms control and disarmament, international humanitarian and criminal law, and the governance of outer space activities. Sigrid Boysen is Professor of International and European Law at Helmut Schmidt University in Hamburg (Germany) and serves as editor-in-chief of the international law review Archiv des Völkerrechts. She has held positions as Associate Professor at Free University Berlin and Visiting Research Fellow at Princeton University (Woodrow Wilson School of Public and International Affairs) and at the Institute for Global Law and Policy at Harvard Law School. Her research focuses on international law, with a particular focus on the theory of international law, international environmental and economic law and constitutional law. Garrett Wallace Brown is Professor of Political Theory and Global Health Policy in the School of Politics and International Relations at the University of Leeds. His research includes work on cosmopolitanism, globalization theory, global justice, international law, global constitutionalism and global health governance. He has published widely on issues of cosmopolitan global constitutionalism and has published Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution (Edinburgh University Press 2009), The Cosmopolitanism Reader with David Held (Polity Press 2010), The State and Cosmopolitan Responsibilities (Oxford University Press 2019), and Kant’s Cosmopolitics: Contemporary Issues and Global Debates (Edinburgh University Press 2019). Jutta Brunnée is Dean, University Professor and James Marshall Tory Dean’s Chair, University of Toronto. She has published widely in the areas of public international law and international environmental law. She is co-author of International Climate Change Law (2017), which was awarded the American Society of International Law’s 2018 Certificate of Merit ‘in a specialized area of international law’, and of Legitimacy and Legality in International Law: An Interactional Account (2010), which was awarded the American Society of International Law’s 2011 Certificate of Merit ‘for preeminent contribution to creative scholarship’. She was elected Fellow of the Royal Society of Canada in 2013, and Associate of the Institut de Droit International in 2017. In 2019, she delivered a course on ‘Procedure and Substance in International Environmental Law’ at The Hague Academy of International Law. Başak Çalı is Professor of International Law and Director of the Centre for Fundamental Rights at the Hertie School, Berlin. Her research and teaching focuses on international law with a specific focus on human rights law and institutions in international law and comparative human rights law. She is a fellow of the University of Essex Human Rights Centre and a Permanent Visiting Professor at the Centre for International Courts, University of Copenhagen. Her publi-

x  Handbook on global constitutionalism cations include International Law for International Relations (editor, Oxford University Press 2010), Authority of International Law: Obedience, Respect and Rebuttal (Oxford University Press 2015), Migration and the European Convention on Human Rights (co-editor, Oxford University Press 2021) and Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals (co-editor, Oxford University Press 2022). Eoin Carolan is a Professor at University College Dublin where he is founding Director of the Centre for Constitutional Studies. He was awarded the 2011 Kevin Boyle Prize for Outstanding Legal Scholarship for The New Separation of Powers: A Theory for the Modern State (Oxford University Press 2009). He is a graduate of Trinity College Dublin and the University of Cambridge, and a former visiting researcher at Harvard Law School and University of California, Los Angeles (UCLA) School of Law. Filippo Costa Buranelli is Senior Lecturer (Associate Professor) in International Relations at the University of St Andrews, UK, where he is Fellow at the Centre for Global Law and Governance. He is also Associate Fellow at the Institute for the Study of International Politics in Milan, Italy, and served as Chair of the English School section at the International Studies Association from 2020 to 2023. His research interests are international relations theory, international history, global governance, Eurasian politics and comparative regionalism. His works have been published in several journals and edited collections, including The Oxford Research Encyclopaedia of International Relations, International Studies Quarterly, Geopolitics, Millennium: Journal of International Studies, Problems of Post-Communism, Europe-Asia Studies, International Politics and International Relations among others. Michael W. Doyle is a University Professor of Columbia University, with appointments in international affairs, law and political science. His most recent book is Cold Peace: Avoiding the New Cold War (W.W. Norton 2023). From 2006 to 2013, Doyle was a member of and then chaired the United Nations (UN) Democracy Fund, a fund established in 2005 by the UN General Assembly to promote grass-roots democratization around the world. Doyle previously served as Assistant Secretary-General and Special Adviser for Policy Planning to United Nations Secretary-General Kofi Annan. He has been elected to the American Academy of Arts and Sciences and the American Philosophical Society and been awarded an honorary doctor of laws degree from the University of Warwick (UK). Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple Law School. His research focuses on public international law, international constitutionalism and interdisciplinary approaches to international law. Professor Dunoff has served as a Visiting Professor at Harvard Law School, Princeton University, and the Université de Paris (Panthéon-Sorbonne), and as a Visiting Fellow at the European University Institute, Humboldt University, and the Lauterpacht Research Centre at Cambridge University. His publications include Ruling the World? Constitutionalism, International Law, and Global Governance (co-editor with Joel P. Trachtman 2009), and International Legal Theory: Foundations and Frontiers (co-editor with Mark A. Pollack 2022). He serves on the editorial board of the American Journal of International Law and previously served on Global Constitutionalism’s editorial board. Bardo Fassbender is Professor of International Law, European Law and Public Law at the University of St Gallen (Switzerland). He studied law, history and political science at the

Contributors  xi University of Bonn and holds an LLM from Yale Law School and a Doctor iuris from the Humboldt University in Berlin, where he also completed his Habilitation. He was a Ford Foundation Senior Fellow in Public International Law at Yale University and a Jean Monnet Fellow at the European University Institute. Before coming to St Gallen, he held the chair in international law and human rights law at the Bundeswehr University in Munich. His principal fields of research are public international law, United Nations law, comparative constitutional law and theory, and the history of international and constitutional law. Iain Ferguson is an assistant professor in the Department of Politics and Governance at HSE University in Moscow. His primary research interests are in the international relations of global governance. He has published book chapters and journal articles on representations of international political thought in global governance in-between Western powers (NATO, the EU, the Western states in the Security Council) and Russia. Sassan Gholiagha is a postdoctoral researcher at the European New School of Digital Studies (European University Viadrina Frankfurt (Oder)). He has worked on norms research in International Relations (IR), security discourses, the Responsibility to Protect, international criminal law, drone strikes, human trafficking, and drug control. Currently he is involved in an interdisciplinary project bringing computer scientists and IR scholars together to work on questions of artificial intelligence, machine learning, and argument mining in the context of IR scholarship and political debates. His research has been published in journals such as the International Journal of Human Rights, the Journal of International Political Theory, Global Constitutionalism, and Global Society. He has also published his work in several edited volumes. He is the author of The Humanisation of Global Politics – International Criminal Law, the Responsibility to Protect, and Drones (Cambridge University Press 2022). Matthias Goldmann holds a chair of International Law at EBS University in Wiesbaden. He is also a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Germany. Previously, he was Junior Professor of International Public and Financial Law at Goethe University Frankfurt. He has been Co-Editor-in-Chief of the German Law Journal since 2017. In 2015, he received a Freigeist Fellowship of Volkswagen Stiftung. He has published widely on the theory and history of international law, sovereign debt, and financial regulation. Jill Harries is the Emeritus Professor of Ancient History at the University of St Andrews. Her interests include the history of the Roman Empire, the constitutional thought of Cicero and the relationship of law and constitutionalism to autocracy, and she has been associated with the St Andrews Centre for Global Law and Governance for many years. Among her publications are Sidonius Apollinaris and the Fall of Rome (1994), Cicero and the Jurists (2006), Law and Crime in the Roman World (2007) and Imperial Rome 284–363: The New Empire (2012). Ruth Houghton is a Lecturer in Law at Newcastle University. Her research centres on public international law and global constitutionalism, where she utilises feminist methodologies. She has published in journals such as Global Constitutionalism and the Leiden Journal of International Law on topics including feminist utopias, manifestos, and democracy. Thomas O. Hueglin is Professor Emeritus of Political Science at Wilfrid Laurier University in Canada. His research has been focused on the history of political thought, and on comparative

xii  Handbook on global constitutionalism federalism. Recent book publications are Federalism in Canada: Contested Concepts and Uneasy Balances (2021), Comparative Federalism: A Systematic Inquiry (with Alan Fenna, 2nd edn, 2015), and Classical Debates for the 21st Century: Rethinking Political Thought (2008). In 2019, he was the third recipient of the Distinguished Scholar Award (Publius: The Journal of Federalism, in cooperation with the International Political Science Association). He is currently writing a book on The Federal is the Political: A Conceptual History of Federalism. Oliver Jütersonke is an independent researcher, trainer, knowledge broker and conflict analyst with almost 20 years of professional experience working with civil society, UN agencies and donor governments in Sub-Saharan Africa and the Asia-Pacific region. He is also President of Coginta, a Geneva-based NGO working in the fields of security sector governance, crime prevention and social cohesion. Oliver is a member of the Ethics Review Board of the International Committee of the Red Cross (ICRC) and serves on the Swiss Commission for Research Partnerships with Developing Countries (KFPE). Previously, he was Head of Research at the Centre on Conflict, Development and Peacebuilding (CCDP) at the Geneva Graduate Institute of International and Development Studies. Oliver is the author of Morgenthau, Law and Realism (Cambridge University Press 2010; paperback 2012) and numerous publications on peacebuilding, security-development linkages, and the disciplinary history of international law and international relations, including in International Studies Quarterly, Third World Quarterly, Ethics and International Affairs, the Austrian Journal of Political Science, and Security Dialogue. Jan Klabbers is Professor of International Law at the University of Helsinki. He holds a doctorate – with distinction – from the University of Amsterdam, where he also used to teach. Main publications include Virtue in Global Governance: Discretion and Judgment (2022), The Cambridge Companion to International Organizations Law (2022, ed.), An Introduction to International Organizations Law (2022, 4th edn), International Law (2020, 3rd edn), Treaty Conflict and the European Union (2008), The Concept of Treaty in International Law (1996) and, as co-author, The Constitutionalization of International Law (2009). Mattias Kumm is Inge Rennert Professor of Law as well as Research Professor for ‘Global Constitutionalism’ at the WZB Social Science Center Berlin and Humboldt University. His research and teaching focuses on basic issues and contemporary challenges in global, European and comparative public law. He has held professorial appointments at Harvard, Yale and the European University Institute (EUI). He is one of the founding co-editors in chief of the journals Global Constitutionalism (CUP) and Jus Cogens (Springer). Anthony F. Lang, Jr. is a professor in the School of International Relations at the University of St Andrews. He founded the Centre for Global Constitutionalism in 2008 and served as one of the editors of Global Constitutionalism from 2010 to 2016. In 2021, he was named as the Distinguished Scholar of the International Ethics section of the International Studies Association. He currently edits the Journal of International Political Theory. He has published widely in international political theory, including three single-authored books, ten edited books and numerous articles and chapters. Susanna Mancini holds the Chair of Comparative Constitutional Law at the University of Bologna School of Law, and is a vice president of the International Association of Constitutional Law. She is interested in exploring how race and gender-related social and cul-

Contributors  xiii tural constructs have shaped the balance of power and privilege in a liberal society, and in the role of the law in perpetuating and/or combating the marginalization of women and of racial, religious, sexual and linguistic minorities. Her work explores issue of law and religion, reproductive rights, the partnership of feminism and multiculturalism, self-determination and secession. Since 2022, she is a member of the Intergovernmental Committee responsible for the drafting of accords with minority denominations. Her latest publications include Constitutions and Religion (Edward Elgar 2020), The Conscience Wars (Cambridge University Press 2018, with Rosenfeld), Comparative Constitutional Law: Cases and Materials (with Dorsen Rosenfeld, Sajo and Baer, West 2022). Peter Niesen is Professor of Political Theory at Hamburg University and a former member of the Frankfurt-based Cluster of Excellence ‘Formation of Normative Orders’. With Markus Patberg, he conducted the DFG research project ‘Reclaiming Constituent Power: Emerging Counter-Narratives of EU Constitutionalisation’ (2016–21). His research interests lie in international political theory, Kant, Bentham and animal politics. Among his recent publications are ‘Reframing civil disobedience: Constituent power as a language of transnational protest’, (2019) Journal of International Political Theory, 15(1), 31–48 and ‘Two cheers for lost sovereignty referendums: Campaigns for independence and the pouvoir constituant mixte’, (2022) German Law Journal, 23(1), 44–55. Francis Oakley is the former Edward Dorr Griffin Professor of the History of Ideas at Williams College, Massachusetts, and President Emeritus of that College. Educated at Oxford University, the Pontifical Institute of Medieval Studies, Toronto, and Yale University, he is the author of 15 books and co-editor of three others on topics pertaining to medieval intellectual and religious life and to American higher education. In 2016 the Medieval Academy of America awarded him its Haskins Medal for his three-volume work, The Emergence of Western Political Thought in the Latin Middle Ages (New Haven, CT, and London, Yale University Press 2010–15). Mary Ellen O’Connell is the Robert and Marion Short Professor of Law and Professor of International Peace Studies – Kroc Institute, University of Notre Dame. Her research focus is the international law on the use of force, international dispute resolution and international legal theory. Her publications include The Art of Law in the International Community (Cambridge University Press 2019); Self-Defense against Non-State Actors (with C. Tams and D. Tladi, Cambridge University Press 2019), and The Power and Purpose of International Law, Insights from the Theory and Practice of Enforcement (Oxford University Press 2008). She has been a vice-president of the American Society of International Law and chaired the International Law Association Committee on the Use of Force from 2005–10. Anne Peters is Director at the Max Planck Institute for Comparative Public Law and International Law Heidelberg (Germany), and a professor at the universities of Heidelberg, Freie Universität Berlin, Basel (Switzerland), and a L. Bates Lea Global Law professor at the Law School of the University of Michigan. She is a member of the Permanent Court of Arbitration, and an associate member of the Institut de Droit International. Her current research interests relate to public international law including its history, global animal law, global governance and global constitutionalism, and the status of humans in international law.

xiv  Handbook on global constitutionalism M.J. Peterson is a Professor of Political Science at the University of Massachusetts, Amherst (USA). She has held visiting appointments at the University of Maryland, the University of California Berkeley and the University of Chicago. Her research focuses on international cooperation through intergovernmental organizations, particularly regarding environmental issues and management of high seas fisheries and Antarctica, and regulation of human activity in outer space. She is the author of five books and of articles in the American Journal of International Law, the American Political Science Review, Global Governance, International Organization and World Politics. Michel Rosenfeld is University Professor of Law and Comparative Democracy, Justice Sydney L. Robins Professor of Human Rights and Director of the Program on Global and Comparative Constitutional Theory at the Cardozo School of Law of Yeshiva University in New York City. He was president of the International Association of Constitutional Law and the founding Editor-in-Chief of the International Journal of Constitutional Law (I.CON). He is the author of numerous books and articles that have been translated into ten foreign languages, including The Identity of the Constitutional Subject (2010) and A Pluralist Theory of Constitutional Justice (2022). William E. Scheuerman is the James H. Rudy Professor of Political Science and International Studies at Indiana University, where he teaches political and legal theory. He is the author of eight books and editor or co-editor of four others. His Between the Norm and the Exception: The Frankfurt School and the Rule of Law (MIT 1994) won a number of prestigious prizes, and many of Bill’s articles and books have been translated into Japanese, Portuguese, German, Spanish, Swedish, and other languages. His latest book (an edited volume), The Cambridge Companion to Civil Disobedience, appeared in 2021. Christine Schwöbel-Patel is Professor of Law at the University of Warwick, where she is co-Director of the Centre for Critical Legal Studies. She is the author of two monographs Marketing Global Justice (Cambridge University Press 2021) and Global Constitutionalism in International Legal Perspective (Brill 2011) and editor of Critical Approaches to International Criminal Law: An Introduction (Routledge 2014). Her research and teaching in international law are informed by a critical political economy and aesthetics perspective. Jo Shaw holds the Salvesen Chair of European Institutions at the University of Edinburgh and is currently Head of Edinburgh Law School. Her research focuses on citizenship and constitutionalism in the European and global context. She is one of the editors of the Cambridge University Press journal Global Constitutionalism. Chris Thornhill is Professor of Law at the University of Manchester. Notable among his recent publications are A Sociology of Constitutions (Cambridge University Press 2011), A Sociology of Transnational Constitutions (Cambridge University Press 2016), The Sociology of Law and the Global Transformation of Democracy (2018) and Democratic Crisis and Global Constitutional Law (2021). Stephen J. Toope is President and CEO of the Canadian Institute for Advanced Research (CIFAR). He was Vice-Chancellor of the University of Cambridge, Director of the Munk School of Global Affairs at the University of Toronto, and President, the University of British Columbia. A former Dean of Law, McGill University and Founding President of the Pierre

Contributors  xv Elliott Trudeau Foundation, Toope was also Chair of the United Nations Working Group on Enforced or Involuntary Disappearances. Toope was awarded the American Society of International Law’s Certificate of Merit ‘for preeminent contribution to creative scholarship’ in 2011. He was appointed an Officer of the Order of Canada in 2015, and elected Fellow of the Royal Society of Canada in 2019 and Associate Member of the Institut de droit international in 2021. His most recent book is A Rule of Law for our New Age of Anxiety (Cambridge University Press 2023). Joel P. Trachtman is Professor of International Law at The Fletcher School of Law and Diplomacy. His books include Advanced Introduction to International Trade Law (Edward Elgar 2020) and The Future of International Law: Global Government (Cambridge 2013) among many others. Professor Trachtman has served as a member of the Boards of the American Journal of International Law, the European Journal of International Law, the Journal of International Economic Law, the Cambridge Review of International Affairs, and the Singapore Yearbook of International Law. He has consulted for governments and international organizations, including the United Nations, the World Bank and the OECD. He has been a visiting professor at Basel, Hamburg, Harvard, Hebrew, Hong Kong and Pretoria universities. Martine van Ittersum is Senior Lecturer in History at the University of Dundee, United Kingdom. She is the author of Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615 (Brill Academic 2006). She has published widely on the history of international law and on the theory and practice of Western imperialism and colonialism, particularly in the early modern period. Many of her publications are available at https://​dundee​.academia​.edu/​MartinevanIttersum. Armin von Bogdandy has studied law and philosophy and is Director at the Max Planck Institute for Comparative Public Law and International Law and Professor at the Goethe-University. He is awardee of the Gottfried Wilhelm Leibniz Prize, the Prize of the Berlin-Brandenburgian Academy of Sciences, awardee of the Premio Internacional de Investigación ‘Héctor Fix Zamudio’ and the Court Gavel (Mazo) of the Inter-American Court of Human Rights. He was President of the OECD Nuclear Energy Tribunal, Member of Science Council and Member of the Scientific Committee of the EU Agency for Fundamental Rights. Ingo Venzke is Professor for International Law and Social Justice at the University of Amsterdam, Director of the Amsterdam Center for International Law (ACIL), and a Fellow at The New Institute in Hamburg. He is Editor-in-Chief of the Leiden Journal of International Law. He recently edited Contingency in International Law: On the Possibilities of Different Legal Histories (Oxford University Press 2021) (together with Kevin Jon Heller). Neil Walker holds the Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom. Previously he was Professor of European Law at the European University Institute in Florence (2000–8). He has published extensively on the constitutional dimension of legal order at sub-state, state, supranational and global levels. He has also published at length on the relationship between security, legal order and political community. His most recent books are Intimations of Global Law (Cambridge University Press

xvi  Handbook on global constitutionalism 2015) and The Scottish Independence Referendum: Constitutional and Political Implications (co-editor, Oxford University Press 2016). Antje Wiener holds the Chair of Political Science, especially Global Governance, at the University of Hamburg, and By-Fellow of Hughes Hall, Cambridge. She was made a Fellow of the Academy of Social Sciences in the United Kingdom in 2011, and a Member of the Academia Europea in 2020. Wiener is a founding editor of the interdisciplinary journal Global Constitutionalism: Democracy, Human Rights, Rule of Law. She is the author of numerous articles and books including Contestation and Constitution of Norms in Global International Relations (Cambridge University Press, 2018), A Theory of Contestation (Springer 2014), The Invisible Constitution of Politics: Contested Norms and International Encounters (Cambridge University Press 2008) and European Citizenship Practice: Building Institutions of a Non-State (Westview 1998). She has held visiting fellowships at Edinburgh, Cambridge, Stanford, Sussex, Victoria, Florence, Wellington, and Oxford, among others. Prior to coming to Hamburg in 2009 she was Chair of Political Science and International Relations at Queen’s University Belfast and at the University of Bath. Her current research and teaching interests are in the fields of international relations theory especially norm contestation research and climate agency. Jan Wilkens is a Postdoctoral Researcher in the Synthesis Team at the Center for Earth Research and Sustainability (CEN) within the Cluster of Excellence ‘Climate, Climatic Change and Society’ (CLICCS) at Universität Hamburg. His publications include ‘Postcolonialism in international relations’ in René Marlin-Bennett (ed.), Oxford Research Encyclopedia of International Studies (2017), ‘Concepts at work in global international relations’, in Piki Ish-Shalom (ed.), Concepts at Work: On the Linguistic Infrastructure of World Politics (2021, with Oliver Kessler), and ‘Researching climate justice: A decolonial approach to global climate governance’, International Affairs 98(1) (2022, with Alvine Datchoua-Tirvaudey).

Preface and acknowledgments

The first edition of this Handbook formally began when the editors were approached by Edward Elgar about the possibility of putting together a collection of authors to explore what was then an emerging field of interdisciplinary study. Its informal origins, however, can be traced back some years to when the editors discovered a shared interest in global constitutionalism. Their working relationship and friendship over the past 15 years, both in editing the journal Global Constitutionalism and in reading each other’s work on this topic have given them the ability to create this Handbook. Discussions, dinners and drinks in Hamburg, St Andrews, and around the world have created a synergy of ideas for which they are both thankful. These conversations have continued since the first edition was published and we were pleased to be asked to edit a second edition. All the staff at Edward Elgar have been outstanding, but we would especially like to thank Alex Pettifer, who invited us to put this Handbook together and who has met with us repeatedly and been sympathetic to our failure to complete the Handbook on time. Daniel Mather and Hannah Ross have been extremely helpful in putting together the final version. We are extremely thankful to Hester Lessard for the artwork that graces the cover of our second edition. As editors, we are most thankful to the contributors who have provided such thoughtful, interesting and provocative chapters. Each one advances our knowledge and they most certainly do not all agree. We feel that the contestation among the authors in this book reflects the essentially contested nature of global constitutionalism, something we feel must be at the core of any scholarship in this area. In our first preface we noted that we hoped to include chapters on the following topics: feminism, post-colonialism and international society theory. We are very pleased that this new edition includes works on these subjects, along with others such as space law, the use of force, public international law, and many others. As the field of global constitutionalism continues to become more ‘global’, we believe that this second edition reflects and reinforces that globality.

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1. Introduction to the Handbook on Global Constitutionalism: protecting rights and democracy while binding power Anthony F. Lang, Jr. and Antje Wiener

On 24 February 2022, Russia invaded Ukraine, claiming to protect ethnic Russians within Ukraine, remove Nazis and nationalists, and protect Russia from an advancing NATO alliance directed against Russian interests. Russia has been roundly condemned for its intervention because it violated the core principles of the liberal global order. Ironically, partly as a result of this invasion, some pillars of the global liberal order have been strengthened; for instance, the NATO alliance has been more unified in its response, and the European Union (EU) has been firmer in its use of economic sanctions than in previous conflicts. At the time of drafting this introduction, it is unclear what the outcome of these events will be. While this intervention has only begun, another intervention came to ignominious end only six months before. In August 2021, the United States pulled all its troops out of Afghanistan, leading the remaining Western alliance to do the same. This intervention had resulted from the attacks of 11 September 2001. Over the 20 years of this military operation, the United States and its allies claimed to protect the rights of women, religious minorities and the wider population. Despite years of funding, miliary assistance and high-tech uses of military force, the Western powers changed very little in the country. At the time of this writing, the Taliban have returned to power. With radically reduced access to political participation and contestation and protections of minorities and women worsening, we might ask whether or not this intervention was for anything other than punishing the Taliban rather than advancing any liberal rights. Considering these two uses of military force alongside each other, and the reactions of the international community to them, tells us a great deal. Over the last 15 to 20 years, scholars of international relations (IR) have been contesting the nature of the liberal world order. When Donald Trump was elected president of the United States and the United Kingdom pulled out of the EU, many lamented the collapse of liberal internationalism and the ‘rules based international order’. In response, liberal theorists have argued vigorously that this world order needs to be reconstructed, led by the United States and Europe (Walt 2016; Ikenberry 2020). But would that reconstruction be one that might bind the power of those states? Or, would it further embolden them to continue intervening in states that need to be ‘fixed’ in order to conform more closely to the ideals of the powerful? Is there any way that the liberal goals of human rights and democracy can be promoted without the powerful taking advantage of those ideals? Others have responded to this dilemma in different ways. Those sympathetic to liberalism worry that it is defeating itself internally (Cooley and Nexon 2021). Others have criticized liberalism more directly. Theorists of ‘Global IR’ have argued that the supposed benefits of the liberal rule-based order have not been beneficial across the globe (Acharya 2018; Aydinili and Erpul 2021) as have those seeking to ‘decolonize’ the field of IR (Sabaratnam 2019; Shilliam 2021). Realists have strongly critiqued the pretentions of liberal theorists (Mearsheimer 2019). 1

2  Handbook on global constitutionalism Can global constitutionalism help here? For some, the global constitutionalist idea is directly linked to liberalism, particularly in its focus on democracy, human rights and the rule of law (Kumm 2018). In a recent editorial in the journal Global Constitutionalism, the editors note that the principles of liberal democratic constitutionalism (LDC) are being used by illiberal states to undermine those same principles (Eisler et al 2022). Indeed, writing prior to the 2022 invasion, they point to how Russia has used a standard liberal idea, a referendum, to support its claims to occupy Crimea in 2014 (Ibid. 5), subverting liberalism through its own tools. With this Handbook we suggest that as an interdisciplinary and relatively young academic field global constitutionalism provides a way to think more carefully about the dilemmas of the liberal world order. As the contributions demonstrate, rather than embrace a simplistic idea of rights and democracy, a constitutional order seeks to promote a rule governed political system which recognizes the dangers and tensions of political power. As such, it both promotes institutions that protect rights and give voice to all while also ensuring that no one actor can dominate the system. Through contestation (Wiener 2014; 2018), separation of powers and attention to cultural difference, a constitutional order (either domestic or global) provides us with a different means by which to regulate force and protect the innocent. The current political developments raise a number of questions which cannot be answered today, and therefore remain to be addressed by future research, for instance: would a global constitutional order have prevented Russia from invading Ukraine, or prevented the United States from invading Afghanistan? We cannot know, for we do not have a fully developed global constitutional order. We do know, however, that efforts to regulate war and violence can take institutional form and may well provide new ways of thinking about global politics. This volume, while not directly addressing the dilemmas of the liberal world order, provides different insights from within global constitutionalism into the possibilities and potentials of thinking anew about global politics. The first edition of this Handbook sought to lay out the historical, thematic and practical dimensions of this idea. This new edition includes nine new chapters and a number of substantially revised chapters from the previous edition. Across the entire Handbook, we are pleased to see our authors grappling with the big questions of global politics, ones that do not necessarily have answers, but which provide new lenses through which we can see the world. These lenses are captured by questions such as these: What is global constitutionalism? Drawing on a political idea that finds antecedents in the history of political thought and coming to fruition with the rise of liberalism, constitutional ideas had been influential in shaping the emergence of international legal institutions in the nineteenth and early twentieth centuries, but with the emergence of realist thinking and practice seemed to have declined. Now, though, core constitutional norms such as the rule of law, separation of powers and human rights have emerged as crucial to the theories and practices of global politics. Yet, the rule of law and human rights remain contested by many, especially as political conflict emerges around asylum, lesbian, gay, bisexual and transgender (LGBTQ+) rights, indigenous peoples’ rights, democratization and global trade relations. At the same time an interdisciplinary academic field around the idea of global constitutionalism has gained momentum, with its own journal, a number of research centres, blogs, and a growing trans-border constitutional discourse. But are these ideals shared universally? The diversity of political systems around the world, many of which seem antithetical to ‘Western’ ideals of democracy and human rights suggest otherwise. These diverse particularisms challenge the supposed universalism of global constitutionalism. Yet, at the same time, practices of judicial bodies, sharing of judicial opinions,

Introduction  3 and efforts by activists and others to find common ground suggest not a universal agreement but a recognition that peoples in diverse contexts are not as opposed to these fundamental norms as we might assume. As Lang has recently noted in responding to a special issue on Asian constitutionalism, a ‘practical universalism’ may be emerging through the efforts of individuals and institutions who see the benefits of protecting rights, promoting democracy and ensuring institutions such as judiciaries remain robust (Lang 2021). What benefit is there in proposing new ideas about global constitutionalism in light of the resurgence of nationalism, sovereignty, and war? As this Handbook demonstrates, as an academic discipline, global constitutionalism is dedicated to studying both empirical facts and normative ideals. By studying them in tandem, the interdisciplinary field of global constitutionalism encourages research that explores a more balanced and bottom-up perspective on constitutional quality in the global realm. In this spirit, this Handbook includes contributions from a diverse range of authors including those who argue that the international and global system is becoming more constitutional and those who argue that it should become more constitutional. So, our efforts here may, in some sense, be proved wrong in the short term concerning the empirical facts of constitutionalism. However, the editors and the contributors share the view, in one way or another, that globalization and international legal developments continue to inch toward a global constitutional order. In light of these developments the Handbook on Global Constitutionalism addresses three guiding questions: is the global legal and political order becoming more constitutional? If so, what explains this change? Is such a change a desirable one? These questions have generated a range of answers across a number of interrelated disciplines. The Handbook provides some answers to these questions by asking a select group of leading scholars to examine the idea of global constitutionalism. This introduction will locate some of the broad themes that have been constitutive of the debates about global constitutionalism and the ultimate emergence of an interdisciplinary academic field. In addition, it will provide some historical and theoretical context for the chapters that follow. The Handbook approaches the field of global constitutionalism through the prism of the practices, processes and principles of constitutionalization as the starting point for conceptualizing a shared albeit contested idea. We believe that such a practice-based approach is best equipped to acknowledge the essentially contested nature of constitutional norms and constitutional narratives because it enables a diversity of understandings to emerge and be subject to further refinement and development. In so doing, we see the Handbook as a tool for scholars and students alike as they grapple with a rapidly changing global political and legal order. A constitutional political and legal order enables and constrains political decision-making. It places limits on political life through its emphasis on the rule of law. At the same time, it enables the creation of new institutions and laws in moments of founding and in practices of interpretation. Four principles or ‘fundamental norms’ make manifest these limiting and enabling functions: the rule of law, a balance or separation of powers, constituent power, and rights (Wiener 2008, pp. 65–6; Wiener et al 2012; Rosenfeld 1994). Constitutionalism, then, sits at the intersection of law and politics. A global constitutional order exhibits some variation of these constitutional features. A global constitutional order need not mirror in detail the constitutional orders of Western, liberal democratic states, although there are numerous overlaps between this tradition and the emerging global constitutional order. Moreover, the global process continues to evolve; that is, there remains more constitutionalization than constitutionalism at the global level. Global constitutionalism, for instance, exhibits a rule of law,

4  Handbook on global constitutionalism but governs both the relationships of individuals with each other and with the relationships of states, international organizations and non-governmental organizations. A global constitutional order exhibits a separation of powers and a balance of those powers, but some powers are more prominent than others; for instance, there is no real global legislative body, although there are a number of intersecting sites of law-making and an increasing number of judicial bodies. A global constitutional order does not have a single, clearly defined pouvoir constituant (constituent power) but various groups, agencies and modes of activism together can be understood as providing a kind of representative community for the international community as a whole. And the global human rights regime remains contested by many. Global constitutionalism as a field of study focuses on these emerging elements of the international system. It sees constitutionalism as a description and explanation of how the international legal and political order is changing. It is also a way to normatively evaluate those changes by valorizing constitutionalism as a means by which rights can be protected and responsibilities distributed in the global order. The idea that there is a global order with constitutional features is not necessarily a new claim. Efforts to formalize international law in the nineteenth and twentieth centuries included discourses of the constitutional nature of international life. Indeed, the idea that there is a constitution that stretches beyond the specifics of any one nation state can be found in ancient, medieval and early modern political theories. However, recent years have seen a more concerted effort to describe, explain and evaluate the global order through the concepts and ideas drawn from constitutional theory. These efforts are responses to changes in the EU; in international institutions such as the United Nations (UN) and its various bodies and committees, especially the UN Security Council (UNSC); in international judicial institutions such as the International Criminal Court (ICC); in international law especially with regard to the relevance of international law vis-à-vis regional and sector-based governance; and last but not least in discourses surrounding human rights and, in particular, the rapidly expanding literature on the responsibility to protect (R2P) individual human rights (Bellamy 2007; Brunnée and Toope 2010a; 2010b; Erskine 2013; Welsh 2013). In academic scholarship, moves toward interdisciplinary work by political scientists on law, the rise of constructivist IR theories, and overlaps between political and legal theory have generated important new insights about politics and law at the global level (Dunoff and Trachtman 2009). This Handbook seeks to find in this diverse and rapidly growing body of work some clarity on the nature of global constitutionalism and provide a guide to its foundations, evolution and potential for future scholarship and practice. The Handbook intends to be a ‘broad church’ that locates global constitutionalism and its related themes in a diverse array of scholarship and practices. The Handbook is constructed around six parts: Historical Antecedents; Political and International Relations Theories; Legal Theories; Principles and Practices; Institutions and Frameworks; and New Horizons. In this second edition, many contributions have been updated, either with reference to new theoretical developments or new empirical material. We have commissioned nine new chapters for this volume, which we have organized into different parts in the following ways: chapters on the social contract and international society theory in the section on Political and International Relations Theories; chapters on natural law, international public law, feminism, and postcolonialism in the section on Legal Theories; a chapter on the use of force and R2P in the section on Principles and Practices; a chapter on transnational litigation networks in the section on Institutions and Frameworks; and a chapter on outer space law in the final section on New Horizons. This introduction first elaborates

Introduction  5 the idea of constitutionalism, exploring its historical antecedents and (contested) normative principles. It connects this core idea to recent literature that identifies trends and developments at the global level that exhibits a constitutional character. Second, the introduction explains in more detail the idea of constitutionalization as a process as opposed to the idea of constitutionalism as an end point. This section highlights the contested nature of constitutionalization, suggesting that constitutionalism as a political and legal space enables a kind of contestation that does not (necessarily) descend into conflict but can productively produce new institutions at the domestic and global level.

HISTORICAL ANTECEDENTS A constitution is the set of principles and rules that have been rooted in and which govern a society. Constitutionalism is a political theory that protects individuals from the arbitrary exercise of power through the rule of law and a separation of powers. A constitution can be written or unwritten, as in the case of the United Kingdom. In each case, a constitution is expected to embody the principles of constitutionalism. However, the substance and degree to which these principles are respected and enforced varies according to tradition and context (Tully 1995). Almost every country today has a written constitution, although not all countries are constitutional in this theoretical sense of the term. Also, some states without written constitutions, such as the United Kingdom, are very much constitutional systems. By committing a country’s political structure and organization to a written text, actors within that order will be bound in some ways by the need to adhere to the legal system. Constitutions not only limit power, they also channel it into structures and institutions that govern. In this way, constitutions turn constituent power into constitutional form (Loughlin and Walker 2007). The first written constitutions appeared in the late seventeenth and eighteenth centuries as a result of the revolutions in the American colonies and France.1 The purposeful creation of a constitution was a divergence from the traditional constitutionalism found in places such as Great Britain. Charles McIlwain notes how the move from the classical and medieval eras to the modern era assumed that a constitution is a set of customary and evolutionary norms and principles that govern a society (McIlwain 1958 [2008]). When the American delegates to the Constitutional Convention came together in Philadelphia in the summer of 1787, they may not have envisioned that they would be changing the nature of constitutionalism. However, both they and the French a few years later created a very different understanding of the constitution and its place in political life, which ensured the protection of rights against the arbitrary power of the mother country (American) or vested social and political interests (French). The written constitution has come to be seen as the epitome of constitutionalism. Yet the latter is a political philosophy that captures more than the existence of a written text. Instead, it is the broader idea of government in accordance with the rule of law. The rule of law as manifest in constitutionalism, however, is not a rigid adherence to specific codes or legal texts; rather, it is an understanding of the law as a bulwark against the arbitrary exercise of power. The specific tools remain to be agreed by each society. Laws protect individuals and, crucially, create institutions that will balance and check the powers of individuals. Constitutionalism, 1 Though some might argue that the colonial charters of the Americas provided earlier models of the written constitution.

6  Handbook on global constitutionalism then, is the underlying philosophical ideal of a political order defined by four core principles: the rule of law, institutional balance, constituent power, and rights. Each of these four norms can be employed to describe, explain and evaluate political life. As constitutionalism becomes a shared reference within the wider context of global society and global constitutionalism obtains a meaningful role as a novel approach and idea in international law, IR, and global governance, the concept moves on towards a new historical period. A brief history of ideas reveals the various ways in which constitutionalism and related ideas have been understood. The purpose of this brief historical excursus, however, is not to tell a progressive narrative in which these moments culminate in a global constitutional order. Moreover, our intention is not to privilege a liberal story of constitutionalism. Rather, as ‘antecedents’ the individuals identified here can be seen as providing important insights into the intersection of law and politics. They are drawn from a broadly conceived ‘Western’ historical tradition whose insights have been invoked at times and places by different figures in theorizing law at the global level. While we draw upon insights from this historical trajectory, we fully appreciate and hope to see more of reflections on law and power from other traditions, especially as those have impacted upon and shaped the Western discourses. As James Tully has pointed out, to understand the 400 years of constitutional history arising from the Anglo-American context requires appreciating its intersection with the colonial project and the ways in which those encounters have shaped its ideas (Tully 1995). Research in the field of global constitutionalism therefore needs to be fully aware and take better account of diverse contexts of constitutionalization and how these intersect through both regulatory and customary practices of constitutionalism (McIlwain 1947). For example, more research on cultural practices and how they might question regulatory mechanisms of modern constitutionalization need to be explored in order to better account for cultural diversity (Borrows 1994; Williams 2009). Others have pointed to the ways forms of global governance can be drawn from experiences such as the Iroquois Nations in North America (Crawford 1994). Even more importantly, by noting these antecedents, we can disabuse ourselves of the idea that there is something radically new in global politics and law today. Instead, we can see parallel developments in different times and places when struggles to capture politics in legal form have taken place. In addition, the brief overview provided here crosses both domestic and global constitutionalism, for some thinkers looked only to their internal constitutional orders while others sought to theorize from that internal foundation to regional, international or global levels.2 In Ancient Greece, the contrasting views of Plato and Aristotle provide two helpful markers for understanding the relationship between law and politics. For Plato, a constitutional order can be reduced to the laws that define it. Plato’s view of Law can be found in the Crito and the Laws. The Crito, Socrates’ explanation of why he refuses to flee Athens as he faces his death at the hands of the democracy, presents the Law as a moral framework that guides the individual through their life and serves as something like a father figure to the individuals of the city. This idea is further refined in the Laws, where Plato presents a theory of laws and law-making. Underlying this theory of law, however, is a political order framed by virtue, an idea explored in Plato’s other important political work, The Republic. The politics of virtue are (in)famously Historical context is a vexed methodological problem, and it will certainly not be solved in this introduction or this Handbook. Martti Koskenniemi (2013) provides one effort to balance progress and context in the study of international law. 2

Introduction  7 institutionalized in Book XII of the Laws, where Plato introduces the ‘nocturnal council’, an institution designed to ensure that the laws conform to virtue and that they will ensure the role of law in the upbringing of all persons. While the text has little to say about anything beyond the community, the nocturnal council does draw upon the expertise of individuals from other communities, perhaps giving an early intimation of constitutional learning that has become a more recent prominent dimension of global constitutionalism. An alternative picture of constitutionalism emerges from Plato’s student, Aristotle. Rather than a theory of law or law-making, Aristotle explores political life through the nature of its institutions. Like Plato, Aristotle sees the political system as intimately connected to virtue and moral education. Yet, for Aristotle, a constitution includes everything from the structure of law-making to principles of education and location of the city. This comparative study directly informed his famous work of political theory, The Politics (Aristotle c. 350 BC [1996]; Polin 1998). Aristotle privileges politics over law, seeing in the institutions of political life the tools for ensuring the good life rather than in the making of laws. As with Plato, Aristotle has much less to say about anything beyond the polis, though his comparative method does suggest that understanding the diversity of the global order might help inform the ways in which we read constitutions. Neither Plato nor Aristotle theorized political life much beyond the borders of the city state. Roman theorists of law and politics, however, had more reason to turn beyond the city state as their political order expanded into an imperial one. In addition, the more formal legalism of the Roman Republic contributed in important ways to our understanding of what it means to have a law governed society (Lincott 1999). A Greek statesman who was captured and taken to Rome, Polybius, explored the centrality of the mixed constitution in the Roman political system, arguing that its success as an empire relied to some extent on its ability to keep the different elements of society in balance. The mixed constitution is one in which the different forms of government – monarchy, aristocracy and democracy – provide a foundation for political order by reflecting the social interests of different elements in society. The mixed constitution contributed to the modern idea of the separation of powers, though it is less about functions than about political classes (Polybius 1979). Polybius’ insights into the mixed constitution are not about Rome’s empire, but about Rome itself; at the same time, his articulation of the mixed constitution comes in the middle of his description of how the Roman Empire was able to expand so quickly. Another important Roman theorist of constitutionalism is Cicero, whose focus reflects the influence of Plato more than the historical expansion of Rome. Cicero’s Republic stands as a continuation of Greek thought in many ways, drawing on the importance of virtue and its relationship to political order. Cicero understands law and politics through the lens of natural law, which informed the ways in which constitutionalism and political theory more broadly developed. Writing at the moment when the Roman Republic was collapsing into an authoritarian rule, Cicero’s reflections on the benefits of a constitutional order are less about what Rome actually was and more about what he and others hoped it could be. This more theoretical, idealistic interpretation of Rome greatly influenced the development of law and particularly the creation of the natural law tradition that shaped so much of medieval legal and political thought (Cicero 1998).3 While a work of literary theory and history, C.S. Lewis’s lectures on medieval and Renaissance literature use Cicero’s famous passage in the Republic, Scipio’s Dream, as the foundation for the strong natural law heritage found throughout medieval and Renaissance literature and philosophy (Lewis 1994). 3

8  Handbook on global constitutionalism Importantly, though, the history of Rome is one of occupation and expansion. This history should give us pause to think through the ways in which constitutional developments arise from imperial practices and the increased size of the empire, as the contribution by Jill Harries in this Handbook highlights. This natural law tradition shaped the medieval European understanding of law and politics. Thomas Aquinas refined the natural law, connecting it with the Christian tradition more clearly through his elaboration of the divine, eternal, natural and civic law. This framing of the natural law tradition moved the tradition away from a constitutional framing and more toward a moral framing, but its influence was felt across the political spectrum of Europe. However, outside of the theories of natural law, constitutionalism emerged in the legal and political practices of medieval Europe. The relationships that defined the feudal order in England, for instance, resulted in a discourse of common law that came to undergird the centrality of the rule of law as a device to protect emerging agencies. Brian Tierney has pointed to this historical context as central in understanding constitutionalism (Tierney 1982). Others have looked to the relationships within the church in medieval Europe, particularly the conciliar movement in the fifteenth century as an instance in which individuals within the church polity sought to carve out more space for consultation and shared governance. This largely failed effort at conciliar governance within the church evolved, Francis Oakley has argued, into a defence of rights and the centrality of law in seventeenth-century conflicts in England, Scotland and Wales (Oakley 2003); Oakley’s reflections on the global dimensions of these developments are found in his contribution to this Handbook. Nicholas of Cusa, who helped articulate the conciliar ideal in the Catholic Concordance, can be seen as a theorist of constitutionalism in this context. His ideas, as applied to the ‘global’ institution of the church, in which various levels of church polity had to be structured in relation to the papacy, might also be read as an antecedent of not just constitutional theory but of global constitutionalism (Nicholas of Cusa 1443 [1991]). Mary Ellen O’Connell's chapter on natural law draws out some of these historic themes and puts them into conversation with contemporary international law. The early modern period saw further developments in constitutionalism. Hugo Grotius, Thomas Hobbes and John Locke are all seen as crucial in the development of the social contract tradition and natural rights which came to be so central in constitutional thought. Although they did not advance arguments for formal written constitutions, and they all had very different ideas of what constitutes both the social contract and natural right, these three are often seen as important markers in the development of constitutionalism. Underlying their accounts, though in very different ways, is a broadly understood theory of natural law that builds on the ancient and medieval heritage but transfers it into a theory of rights. While rights have become a dominant discourse in modern constitutional theory, the natural law framework should not be ignored, for natural law and constitutionalism both provide a framing of law and politics that describes and evaluates the political and legal. Grotius, of course, theorizes law and politics at the international level, most famously in The Laws of War and Peace (Grotius 1625 [2005]). Grotius’ account does not conceptualize his approach in constitutional terms, though his arguments may well have been shaped by ongoing debates in the newly independent Netherlands about its constitutional order (Lang 2010). Even more importantly, as Martine Julia van Ittersum highlights in her contribution to this Handbook, the ways in which the reliance on written agreements in the conduct of relations between the natives of the East Indies and the Dutch imperial powers – relations in which Grotius was intimately connected – allowed for the disenfranchisement of peoples and their loss of rights, a situation that the

Introduction  9 contemporary ‘fetishism’ of treaties continues to reinscribe. At the same time, the contribution by Bardo Fassbender in the Handbook explores the nature of the written, as opposed to the unwritten, constitution, providing an alternative viewpoint on the nature of texts and global constitutionalism. Hobbes’s work is rarely seen as constitutional, and he is often seen as a theorist of decisionism rather than a theorist of law. Recent interpretations of his work, however, have emphasized the importance of the law and principles such as equity in Hobbes’s work, both of which contribute to an understanding of the social contact, and constitutionalism, as more nuanced and law bound than previous interpretations of Hobbes have made (Dyzenhaus and Poole 2012). Some have advanced interpretations of Hobbes that even suggest his ideas about law and constitutionalism may have something to tell us about a global rule of law (May 2013; Dyzenhaus 2014; Lang 2017). Locke, in part because of his influence on the American founders and their written constitution, is perhaps closer to the constitutional tradition than Grotius or Hobbes (Locke 1681 [1988]).4 As noted above, though, it was the revolutions in America and France in the late eighteenth century that brought on the shift to a written constitution and, importantly, the idea of a constitution as a device to promote a particular framework of institutions and rights. However, even while appreciating the importance of the written text as a formal normative form for political governance, the longer historical context provides a way to understand constitutionalism as both descriptive and normative. Enlightenment figures further contributed to the philosophy of constitutionalism, though, again, the focus is less on the written constitution and more on the underlying political and moral ideas. Montesquieu’s Spirit of the Laws explored constitutionalism in a way that parallels Aristotle, resulting in a comparative project that sought to delineate the wide range of elements that form the legal order. In terms of constitutional theory, he is perhaps most famous for his portrayal of the English constitution as encapsulating a separation of powers (Montesquieu 1748 [1989]). Montesquieu here builds on the idea of the mixed constitution, though we now begin to see the slow transformation of this ideal from a theory that reflects social classes into a theory that defines the functioning of governments. Montesquieu does not theorize a global or even international legal order, but his ideas about the separation of powers come to form an important part of the constitutional tradition. Arising at roughly the same time, though, Emer de Vattel, the Swiss diplomat and international legal theorist proposed a European legal and political order in which all states shared sovereign equality, providing a crucial new way of seeing the international legal order. For Vattel, equality did not depend on power or size but on a formal understanding of statehood, a principle that continues to shape and define the international order. While his theories are not necessarily about global constitutionalism, one might read them instead as a theorization of a kind of international constitutionalism, one in which law and institutions such as sovereignty create a proto-constitutional European order (Vattel 1758 [2008]). Enlightenment ideas continued to ferment in Europe, with both cosmopolitan and communitarian strands emerging. In the work of Immanuel Kant, the idea of law and rules plays a crucial role in his overarching ethical and political thought, perhaps best captured in his Theory of Right. Law is not simply a tool to govern society; it constructs the self and the

4



On Locke’s natural law ideas, see ‘Essay on the Law of Nature’ (1663–64) in Locke (1997).

10  Handbook on global constitutionalism relationships within society in a profound way. Kant addressed international affairs as well, famously in his essay, Perpetual Peace, where he moves from the importance of republican states to respect for international law to the intimations of a cosmopolitan political order. While some have argued that Kant is the modern-day father of cosmopolitanism, both in this essay and other political works, he is perhaps somewhere between the international constitutionalism of Vattel and later developments in international law that we might identify as global constitutionalism. That is, with his careful construction of a legal and political order in which republican states respect international law and welcome strangers in pursuit of a cosmopolitan right of hospitality, Kant moved the Enlightenment ideals of law and politics a step closer to a global constitutional ideal (Kant 1990). While Kant’s cosmopolitanism shapes one version of constitutionalism, G.W.F. Hegel’s statism and communitarian philosophy shapes another strand. The pinnacle of German idealism, Hegel’s conceptions of the European (or perhaps German?) state as the epitome of human development shapes constitutional thinking in a number of ways. By locating the fulfilment of the human person in the construction of a particular kind of liberal state, Hegel’s theories create the state as the model form of political community, a model that continues to animate global public policies which seek to replicate the European constitutional state in situations of post-conflict and more widely in the developing world. Hegel also theorized a complex relationship between the sovereign state and its relations with other states, sometimes seeing in the practice of war the triumph of state agency, and at other times seeing the practice of legal relations among states as a defining feature of their maturity. Theorists of global ethics and politics have fruitfully drawn upon Hegel to articulate how perfecting the state can lead to a more peaceful and just global order, a version, it might be argued, of a global constitutional order (Hegel 1821 [1991]; Frost 2008). These conflicting Enlightenment ideals around constitutionalism became a reality with the American Constitutional Convention in 1787. The shift from the Articles of Confederation to the Constitution altered the political and legal landscape not just in the United States but in our understandings of a constitution as a written text by which a state might be governed. The philosophical underpinnings of that constitution can be found in the series of newspaper articles written in defence of the newly proposed constitution, which eventually came to be called The Federalist Papers. These arguments around various elements of the constitution were written by John Jay, James Madison and Alexander Hamilton, who were building on the ideas of figures such as John Adams, Thomas Jefferson and Thomas Paine. Together, these thinkers and political actors helped to define a new political order which relied on an open-ended political agreement. The interpretation of this text by the influential Supreme Court Justice, John Marshall, enshrined the idea of judicial review in the American, and soon global, legal and political context (Amar 2005). Constitutional theory and practice developed further from these key moments, but they provide the context from which much later work developed. Sociological theorists of constitutionalism have drawn upon these historical antecedents to develop a range of different interpretations of constitutional theory (Teubner 2012; Thornhill 2011). Indeed, the Handbook includes a contribution by one of the leading theorists of sociological approaches to constitutionalism, Chris Thornhill, whose contribution locates these Enlightenment strands in relation to ideas about global governance and international constitutional developments at that time and into the modern period. In addition, Michel Rosenfeld’s contribution moves us from the Enlightenment to the modern period in thinking through the heritage of constitutional thought

Introduction  11 for both domestic and global constitutionalism today. Indeed, the five contributions on history in the Handbook demonstrate that there is no simple liberal trajectory for constitutional thought and, as the global dimensions of those ideas are better understood, we must consider carefully the ways in which it intersects with imperial and oppressive political dynamics. For the editors, this does not imply that we should abandon constitutional thought or practice, but, by understanding and acknowledging these developments, we can appreciate how they function today and how we might propose alternative configurations to avoid the errors of the past.

CONSTITUTIONAL PRINCIPLES Emerging from these historical antecedents, however, are the four underlying principles of constitutional theory. The first, and most important, is the rule of law. The rule of law is simply the idea that a political order should be organized in such a way that decisions result from a rule-based system that has emerged from a formal legislative process. These two elements of the rule of law – governance in accordance with law and formal law-making – ensure that a political order is not controlled by any one agent. The emergence of constitutionalism in the different historical contexts noted above often comes in response to governance by individuals who care little or nothing for the consistency and fairness that arise when political life is rule governed (Bingham 2011). The rule of law is not simply the existence of a legal code, however. Law must arise from a legislative process that reflects a diversity of interests and allows a community to not simply create law but engage in the practice of politics. The difference between the rule of law and rule by law in authoritarian regimes reveals this difference (Ginsburg and Simpser 2014). That is, the rule of law means a political order that is law governed and a legal order that results from a fair and representative political process. In this Handbook, Mattias Kumm’s conceptual clarification around the rule of law moves from philosophical reflections on the idea to a greater understanding of how it functions in the global realm. The separation of powers is the next crucial element of a constitutional system. As with the rule of law, the separation of powers is a device for ensuring that no single political actor has too much power or can direct the political system to his or her own purposes. As noted above, the separation of powers can be found in a different way in the ancient idea of the mixed constitution. Separating powers arose from the need for different social classes to be represented in the political order. It also represented the different forms of government, in accordance with Aristotle’s division of ruling according to numbers (monarchy, aristocracy and democracy). For instance, in the Roman Republic, the democratic form was found in the legislative assemblies, the aristocratic in the Senate and the monarchical in the consuls. This evolved in the medieval and early modern period into a separation of functions rather than classes or forms. This separation also translated into the balance of power in a constitutional order, as the functions of the legislature, executive and judiciary came to serve different roles which ensured that no single agent (particularly the executive) could dominate the political system. Montesquieu has become the most famous theorist in the history of political thought to develop this idea, though his version of it was based on an idealized conception of the British constitutional system. The separation of powers provides a means not only to limit power, however, but also to enable power, to channel it into productive and useful ends. At times, particularly in the modern-day American political order, a separation of powers can lead to political dysfunction, especially when political disagreement cannot be resolved in

12  Handbook on global constitutionalism a productive manner. However, the ideal of the separation of powers is not simply a limiting device, but also an enabling one. The separation of powers has also led to the emergence and importance of the judicial branch in constitutional theory and practice. Some would argue that the judicial branch in many political orders is too strong, leading to an overly legalized political order (Bellamy 2007). At the same time, most constitutional theories give pride of place to the judiciary which serves to guard the constitution and ensure the protection of rights. Eoin Carolan’s contribution to this Handbook, building on his previous work on the separation of powers in domestic constitutional theory, looks to the idea of a balance of powers in global constitutionalism, bringing forth an alternative approach to this crucial constitutional ideal. The institutional division of powers found in domestic constitutional theory provides a starting point for the contributions by William E. Scheuerman on the executive, M.J. Peterson on the legislature and Başak Çalı on the judiciary. In a different form of the separation of power, Thomas O. Hueglin takes up the theme of federalism in its historic and contemporary manifestations. In each of these contributions, however, the authors explore the ways in which such institutional forms function at a global level, leading to new insights into the emerging global constitutional order, albeit continuously subject to contestation and critique by actors throughout the system. A constitutional order rests upon the people. This idea is sometimes referred to in French as pouvoir constituant, the heritage of the French Revolution and its theorist, Emmanuel Joseph Sieyès, better known as Abbé Sieyès. In his pamphlet, What is the Third Estate?, Sieyès (1970) gave voice to the people and argued for their centrality in the creation of a constitutional system. The importance of the people in the founding of the constitution translates further into their continued role in representative government and in allowing them the ability to enact and change the constitution when necessary. In recent years, particularly among post-Marxist theorists, the idea of constituent power has become a device that can be used for political protest and action across different spheres of the political order, often outside of formal channels. This participatory tradition in political life can be unpredictable and even dangerous to stability, so one of the most important challenges for any political order is to turn political action into governmental form (Loughlin and Walker 2007). Peter Niesen’s account of constituent power in the Handbook clarifies and advances our understanding of this idea by drawing on some figures in the history of political thought. Looking to the EU as providing an alternative way to understand this concept, Niesen develops an important new approach to constituent power. The final principle that plays a part in constitutional theory is often the most prominent in ‘popular’ conceptions of constitutionalism. Rights, either in a domestic or global context, have increasingly become part of constitutional theory and practice. The classic legal definition of rights comes from Wesley Hohfeld, an American theorist of the early twentieth century: rights are justified demands we make on others (Hohfeld 1918 [1946]). This definition is not the only or final version, of course, but it does lay out some important features of rights. Rights are not a form of charity, but are demands we can legitimately make. Further, rights arise in a communal context and so require some exchange among individuals. Rights are at that intersection of politics and law where we have located constitutionalism more generally. Many assume that constitutional theory can be reduced to the protections that rights afford, especially through the exercise of judicial review. Ronald Dworkin famously argued that rights are trumps in political life, a basis against which all other practices must be measured (Dworkin 1977). The rise of human rights since the end of World War II as a prominent discourse of global governance has made this concept perhaps the most important (though for some, such as the American found-

Introduction  13 ers, it was derivative of the creation of a functioning political system; see Zink 2013). In this Handbook, Samantha Besson considers the forms and practices of human rights as contributory to a global constitutional order. Human rights remain central to such practices in that they provide a language and political space in which contestation can take place. The work of James Tully and others has demonstrated how rights can be a resource for thinking through the idea of global citizenship, without falling into the liberal ideology that shaped early conceptions of rights, a crucial insight into understanding rights and global plurality. The point of this overview is not to devise a progressive narrative that indicates how we moved from under-theorized constitutions to the culmination in the written constitutions of the United States and France. Instead, the point of this exercise is to highlight the ways in which various principles of constitutionalism emerged and have been important at different times and places. As suggested above, any time a community must seek to balance a role for law and politics, some version of constitutionalism emerges. Emphasizing the diversity of historical contexts is important if only because we do not believe there is one current theorization of global constitutionalism. Instead, there are a variety of global constitutions, and a variety of interpretations of those global constitutions. Some argue that for any global order to be constitutional, it must be tied to a specific constitutional text. Bardo Fassbender has been a leading proponent of the view that the global constitutional order is to be found in the UN Charter. He is not a wild-eyed idealist, for he understands that the text is flawed in places and requires interpretation (Fassbender 2009). He builds upon this foundational work in his contribution to this Handbook, where he turns to the written constitution, looking to the UN Charter as an example of why a written text is to be preferred to the unwritten model. Michael W. Doyle’s contribution to this Handbook, building on recent work he has been doing on global constitutionalism, also looks to the Charter as a constitutional document, in which he finds new insights on global governance. Jeffrey L. Dunoff, drawing from resources in both political science and international law, examines the terrain of functionalism as a possible way to understand law and institutions such as the UN and the World Trade Organization (WTO) as spaces of global constitutionalization. Certain strands in international legal theory have also focused on the way in which judiciaries and legal texts are coming to define international law in diverse ways. These works see a ‘constitutionalization’ of international law (Klabbers et al 2009). In his contribution to this Handbook, Jean d’Aspremont not only surveys some of the efforts to find in positivist international law a constitutional theory, but he also helpfully looks to the critics of these approaches (a category in which he includes himself). His insightful and considered overview reveals that some of the criticism of the constitutionalization of international law arises from a particular set of agendas that he critiques, giving us a nuanced assessment from the perspective of positivist legal theory. Jutta Brunnée and Stephen J. Toope bring their interactional legal theory to bear upon debates in global constitutionalism in their contribution to the Handbook. Also, Anne Peters, one of the earliest proponents of global constitutionalism within the sphere of international law, proposes an understanding of proportionalism, a standard category across many international legal theories, as a way to see how global constitutionalism functions in the global legal sphere. This second edition has a number of contributions which draw out important critical strands in international legal theory. In their chapter on public international law, Armin von Bogdany, Matthias Goldman and Ingo Venzke propose the idea of international public authority as a new way to see international law. Ruth Houghton reflects upon and develops the burgeoning field

14  Handbook on global constitutionalism of feminist international law as it relates to global constitutionalism. Sigrid Boyson critically assesses international law and global constitutionalism from a postcolonial perspective, an important corrective to a tradition of thought so often located solely in European and North American assumptions about world order. Another version of global constitutionalism arises from a cosmopolitan reading of Kant. Jürgen Habermas has made this argument in the context of EU politics, drawing on Kant’s Perpetual Peace essay to propose an evolution from state, to state international law, to cosmopolitan law. He builds upon the German idea of ‘constitutional patriotism’ as a model for how to move toward a global civil society (Habermas 2001; 2006). The idea of Verfassungspatriotismus that Habermas is deploying is drawn from German constitutional theory, one which is sceptical of patriotism because of German history. At the same time, a very strong allegiance to the constitution and respect for the Federal Constitutional Court (Bundesverfassungsgericht) has arisen in Germany. Respect for the law at the international level for Habermas means something related to constitutional patriotism. Other theorists have also drawn on Kant to propose versions of global constitutionalism. Garrett Wallace Brown draws on not only the Perpetual Peace essay but a wide range of Kant’s work on political philosophy and public law to explore the potential for a global constitutional order. Brown sees in Kant’s account the possibility for a cosmopolitan constitutional order (Brown 2009). In his contribution to our Handbook, Brown makes a powerful case that global constitutionalism is a form of legal cosmopolitanism, and that theorists from both perspectives could learn greatly from each other. Others have located constitutionalism in political arrangements rather than primarily in the rule of law discourse. Jean Cohen, for instance, while writing from the perspective of an international legal theorist, has proposed a more minimalist account of constitutionalism at the global level, with more focus on the importance of sovereignty as a principle that should undergird the international order but which can somehow accommodate moves toward a globalizing structure (Cohen 2012). Theorists drawing from strands in IR theory have proposed similar constitutional interpretations of the global order. Liberal theorists of IR such as G. John Ikenberry suggest that the international order is becoming more constitutional as it adopts ideas about the rule of law and human rights. Ikenberry and others, however, link this development to the triumph of American and British liberal ideas, which makes their account less about balance and more about a hegemonic structure imposed from a single source (Ikenberry 2006). Iain Ferguson explores some of the liberal strands within global constitutionalism, specifically connecting them to debates in IR theory, providing an important critical perspective on Ikenberry’s work. A republican literature within IR theory has also emerged that focuses on how balances and law promote and protect individual agents. These works draw on sources such as Aristotle, Vattel and the American founders (Onuf and Onuf 1993: Onuf 1998; Deudney 2007). Antje Wiener has drawn upon constructivist theories of IR alongside wide-ranging interviews with European policy elites to propose the existence of an ‘invisible constitution’ in certain regional and international contexts (Wiener 2008). Drawing on James Tully’s Public Philosophy in a New Key (Tully 2008a; 2008b), practice-orientated perspectives on the contested interpretations of fundamental norms have offered novel insights into the time-space contingency of constitutionalism as a contested narrative itself (Tully et al 2016). Drawing upon constructivist theories of IR and public philosophy this research focuses on the impact of cultural diversity on variations in the normative structure of meaning-in-use in distinct constitutional contexts (Milliken 1999). Based on critical discourse analysis, this

Introduction  15 research adds an inductive approach to global constitutionalism, arguing for the importance of the interplay of different kinds of norm validation. Jan Wilkens, in his contribution to this Handbook, summarizes and advances the work of critical constructivism in IR theory and derives important links with global constitutionalism as a prospective field of study of diversity and constitutional development based on bottom-up regional perspectives. International society theorists have also contributed to this literature, going back to some brief references in Martin Wight’s work to more developed accounts of constitutional legitimacy in Ian Clark’s work and studies of order by Andrew Hurrell and Robert Jackson (Jackson 2003; Clark 2005; Hurrell 2007; Lang 2014). Filippo Costa Buranelli reflects on this tradition of thought and updates in relation to new theoretical developments. Another IR theory that held particular prominence in the twentieth century, realism, is also addressed in this Handbook. By elaborating on the distinction between legal and political realism, Oliver Jütersonke explores some of the ways in which theorists such as Hans Morgenthau might be more relevant to understanding global constitutionalism than might at first glance seem possible. Engagement with the idea of global constitutionalism continues to develop in the pages of the journal Global Constitutionalism. From its opening editorial, which set out an agenda for research on the idea (Wiener et al 2012), to more sceptical engagements with what it means to talk of such an idea (Brown 2012) and, more recently, about the interrelation between the ‘end of the “west” and the future of global constitutionalism’ (Kumm et al 2017), the journal has continued to develop the idea and locate it in relation to themes such as democracy, the rule of law and human rights. As befits an interdisciplinary scholarly journal, the editors have been open to a range of different theoretical and disciplinary positions on the idea, and these positions are reflected as well in this Handbook. Indeed, it is the idea of contestation and constitutionalization, the ongoing development and refinement of the idea, that frames an important part of the Handbook and which we explain in more detail in the next section.

CONSTITUTIONALISM AND CONSTITUTIONALIZATION To some research in the field of global constitutionalism entails studying ‘constitutional practice – and constitutional discourse – at transnational sites of governance’ (Dunoff and Trachtman 2009, p. 3, original emphasis; compare also Klabbers et al 2009). Others, in turn, would argue that studying global constitutionalization includes the very constitution of transnational sites that obtain their legitimacy through international contestations of constitutional norms (Benhabib 2007; Isiksel 2010; Liste 2016). The contributions to this Handbook demonstrate that the specific timing of constitutional practice matters in two ways. First, by turning to practices that precede these sites of governance, it becomes possible to include a range of actors who are located at the fringes of international organizations. It follows that global constitutionalization is not understood as practised by member states of international organizations or international treaty regimes and their government representatives. The conceptual move allows for the inclusion of a more diverse state-plus actorship which encompasses the contestations of non-governmental organizations (NGOs), social movements, strategic networks and advocacy groups, next to international institutions and state, as constitutive for both the sites and the fundamental norms of global constitutionalization. Second, the inclusion of contestatory practices that are located as ‘prior to’, ‘outside of’ or ‘in interaction with’ sites of global governance allows for research to establish the very transnational quality of an arena

16  Handbook on global constitutionalism (Tully 1995; 2002; Pettit 2007). This suggests how the practices which are constitutive of global constitutionalization can be understood as ‘unbound’ from the state (Wiener and Oeter 2011; 2017). There are some traditional sites in the international order where forms of global constitutionalism can be found. These include the WTO, the UN, the ICC and the EU. The Handbook includes discussions of these spaces in the contributions from Joel P. Trachtman, Jan Klabbers, Anthony F. Lang, Jr., Andrea Birdsall and Jo Shaw. In their accounts, these inherently international spaces have opened up possibilities for considering global political practices that are constitutional or demonstrate modes of constitutionalization. In so doing, these places, while certainly sites for powerful agents to control institutions, also reveal places where contestation can fruitfully take place. For instance, in the critical accounts of the global political economy offered by Gavin W. Anderson and Christine Schwöbel-Patel, global economic interactions are revealed as possible sites of resistance and contestation. Sassan Gholiagha writes about the military force and particularly R2P as a possible site of constitutional development at the global level. To find constitutionalization in the use of violence is surprising, but Gholiagha reveals how R2P has become a focal point for norm growth. And, Jill Bähring’s insights on transnational litigation networks demonstrates how constitutionalization can be found through the actions of a range of different actors working together in the pursuit of justice, growing out of simultaneous and unplanned modes of action. Adam Bower points to outer space law, a body of law that emerged in the 1970s but has now been reinvigorated as the commercial and military uses of outer space increase, generating new competitions among the great powers. Bower connects this to the literature on global constitutionalism, suggesting important links between these bodies of thought. This centrality of the conceptualization of the place where constitutionalization occurs has been explored in particular by practice-orientated approaches to norms in IR theory as well as in public philosophy. While some work with an unproblematic understanding of ‘transnational sites of governance’ (Dunoff and Trachtman 2009, p. 3), to others the qualification of an arena as ‘transnational’ represents a research assumption that remains to be proven by empirical research. For, if sites are conceptualized as ‘transnational’, the impact of diverse experiences and expectations must per se remain bracketed. To reverse this analytical bracketing, practice-orientated approaches within global constitutionalism allocate norm-generative practices at a point in time that exists ‘prior’ to constitutional agreements. That is, practices, principles and agreements are considered to be equally and partially constitutive for the normative meaning-in-use entailed in and transported by global constitutionalization at any point in time (Berger and Luckmann 1991; Onuf 1994; Adler-Nissen and Kropp 2015; Sending et al 2015). The contribution from Susanna Mancini demonstrates that religious traditions can provide such spaces for contestation, while Neil Walker’s development of the idea of pluralism further enhances our understanding of how contestation functions in international legal orders as they overlap and interact. To summarize, constitutionalization is a category that describes processes of institutional ordering which result in terms of constitutional function and quality, and which are therefore comparable with forms of political and legal order. In turn, as a social practice, contestation indicates objection to the norms of the latter orders. Depending on the type of norm, ranging from fundamental norms to organizing principles or standardized procedures, this disapproval is expressed differently. The mode of contestation, that is the way contestation is displayed in practice, depends on the respective environment

Introduction  17 where contestation takes place (i.e. courts, regimes, societal or academic). Several discursive codes are to be distinguished (i.e. formal, semi-formal or informal). Accordingly, four modes of contestation can be distinguished with reference to the literatures in law, political science, political theory and political sociology, respectively (Wiener 2014, p. 1). At the centre of these contestations are fundamental norms, that is, norms and principles that are widely shared by the relevant actors, fulfil a constitutional function and are parallel to the fundamental constitutional principles at the basis of institutional ordering at the national level. For global constitutionalists, therefore, contestations entail key information about normative change and indicators of the sites where this change is negotiated. In contra-distinction to concepts of political and legal order, the trans-border quality of global constitutionalism crucially depends on concepts of social order and social ordering of the global realm. Given the trans-border quality as a sine qua non of global constitutionalization as a process that is carried by a state-plus actorship which operates across and beyond the boundaries of national constitutionalism, the central concepts of global constitutionalism have been evolving in close interrelation with the constitutional ideals and ideas of the previous centuries. Today’s meanings of the four main elements of modern constitutionalism, that is, the rule of law, the balance of power, the pouvoir constituant, and rights have changed subsequent to the contestation of fundamental norms. As a relatively recent field of study, global constitutionalism reflects these contestations. The main concepts for the study of global constitutionalization therefore include contestation (as the constitutive practice of constitutional substance), fundamental norms (including the rule of law, fundamental rights of individuals and democracy) as well as state-plus actorship (as the stakeholders with a rightful claim to regular contestation). While traditions of political and legal order inform the ideas and ideals of constitutionalism, the trans-border quality of global constitutionalism requires a shift from modern constitutional ideas towards the way these ideas’ normative meanings have been re-/ enacted over time. That is, in order to address issues of legitimacy, fairness or accountability in terms of global constitutionalism, research needs to engage with both the given ‘hard’ institutional settings (i.e., international organizations and their respective treaty regimes) on the one hand, and the ‘soft’ institutions that are re-/enacted through contestatory practices vis-à-vis fundamental constitutional norms (i.e., the normative structure of meaning-in-use) on the other. By linking contestation (as a localized activity) with constitutionalization (as a globalized process) it is possible to facilitate a relational account of global constitutionalization as a mosaic of pluralist constitutional narratives rather than a single encompassing normative order.

CONCLUSION In his recent history of global governance, Mark Mazower argues that culture, science, politics and law each made important contributions to theories of world order in the nineteenth century. While culture and science are not the focus of this book, law and politics are. Mazower uses the American conflict over the League of Nations (hereafter, the League) to bring out the different strands of legal and political thinking in the debates about global governance. He points to the legalism of figures such as Elihu Root and William Howard Taft as advocates of the arbitration and legalization model of global governance that played such an important role in creating the judicial institutions and international legal culture of the late nineteenth and early

18  Handbook on global constitutionalism twentieth centuries. At the same time, he suggests that the ideas of Woodrow Wilson, whose scholarly work focused on the US Congress, as central to the creation of a parliamentary model for the League structures, highlighted the importance of deliberation and representation as more important than law and judicial structures. The Wilsonian legislative and political model became the foundation for the League, which Mazower argues played an important part in the American Republicans’ refusal to ratify the League. Certainly, some Republicans such as William Borah refused the League because it limited American sovereignty, but according to Mazower, some American resistance came from an insistence on a stronger legal and judicial institutional governance model rather than the parliamentary and deliberative model (Mazower 2012). Had it been a recognized idea at the time, perhaps global constitutionalism might have allowed a way to ameliorate this conflict. Admittedly, it would not necessarily have prevented the Ukraine war. However, the response to Russia’s invasion – a strengthened NATO alliance and a more robust response from the EU – provide hope that constitutionalism and constitutionalization might well benefit from this aggressive act. The unintended effect of Russian military aggression may therefore result in a renewed assessment of leading liberal principles and norms on a meta scale scrutinizing them to the benefit of a global order based on liberal constitutional rights. Global constitutionalism, or constitutionalism, brings together the political and legal. Constitutions are founded as political acts but they generate legal structures and codes. When created, those institutions and legal codes shape and reshape political life and the deliberations that take place in parliamentary spaces. In so doing, global constitutionalism can be seen as a framework that brings together law and politics. There is no end point to this process, however, for it continues on and will continue to be a contested and fruitful subject of analysis. The contributors to this Handbook provide new insights from history, politics, law and sociology in the hope of laying some foundations on which to build further research and inform global public policy. It is our hope as editors that this Handbook will provide new ways of seeing IR and international law, which can enable new political constellations and insights in the multiple and contested global orders of today.

REFERENCES Acharya, A. 2018. Constructing Global Order: Agency and Change in World Politics, Cambridge: Cambridge University Press. Adler-Nissen, R. and K. Kropp (2015), ‘A sociology of knowledge approach to European integration’, Journal of European Integration, 37 (2), 155–73. Amar, A.R. (2005), America’s Constitution: A Biography, New York: Random House. Aristotle (c. 350 BC), The Politics and the Constitution of Athens, reprinted S. Emerson (ed.) (1996), Cambridge: Cambridge University Press. Aydinli, Ersel and Onur Erpul. 2021. ‘The false promise of global IR: exposing the paradox of dependent development’, International Theory, 14 (3), 419–59. Bellamy, R. (2007), Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, Cambridge: Cambridge University Press. Benhabib, S. (2007), ‘Twilight of sovereignty or the emergence of cosmopolitan norms? Rethinking citizenship in volatile times’, Citizenship Studies, 11 (1), 19–36. Berger, P. and T. Luckmann (1991), The Social Construction of Reality, London: Penguin Books. Bingham, T. (2011), The Rule of Law, London: Penguin. Borrows, J. (1994), ‘Constitutional law from a First Nation perspective: Self-government and the Royal Proclamation’, University of British Columbia Law Review, 28 (1), 1–47.

Introduction  19 Brown, G.W. (2009), Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution, Edinburgh: Edinburgh University Press. Brown, G.W. (2012), ‘The constitutionalisation of what?’, Global Constitutionalism, 1 (2), 201–28. Brunnée, J. and S.J. Toope (2010a), Legitimacy and Legality in International Law, Cambridge: Cambridge University Press. Brunnée, J. and S.J. Toope (2010b), ‘The responsibility to protect and the use of force: Building legality?’, Global Responsibility to Protect, 2 (3), 191–212. Cicero (1998), The Republic and The Laws, trans. N. Rudd, introduction and notes by J. Powell and N. Rudd, Oxford: Oxford University Press. Clark, I. (2005), Legitimacy in International Society, Oxford: Oxford University Press. Cohen, J. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism, Cambridge: Cambridge University Press. Cooley, Alexander and Daniel Nexon. 2021. ‘The real crisis of global order: illiberalism on the rise’, Foreign Affairs, December. Available online at: https://​www​.foreignaffairs​.com/​articles/​world/​2021​ -12​-14/​illiberalism​-real​-crisis​-global​-order. Crawford, N. (1994), ‘A security regime among democracies: Cooperation among Iroquois Nations’, International Organization, 48 (3), 345–85. Deudney, D. (2007), Bounding Power: Republican Security Theory from the Polis to the Global Village, Princeton, NJ: Princeton University Press. Dunoff, J. and J. Trachtman (eds) (2009), Ruling the World: International Law, Global Governance, Constitutionalism, Cambridge: Cambridge University Press. Dworkin, R. (1977), Taking Rights Seriously, London: Duckworth. Dyzenhaus, D. (2014), ‘Hobbes on the international rule of law’, Ethics & International Affairs, 28 (1), 53–64. Dyzenhaus, D. and T. Poole (eds) (2012), Hobbes and the Law, Cambridge: Cambridge University Press. Eisler, J., J. Havercroft, J. Shaw, A. Wiener, and S. Kang, 2022. ‘The pendulum swings back: new authoritarian threats to liberal democratic constitutionalism’, Global Constitutionalism, 11 (1), 1–8. Erskine, T. (2013), ‘Normative IR theory’, in T. Dunne, M. Kurki and S. Smith (eds), International Relations Theory: Discipline and Diversity, 3rd edn, Oxford: Oxford University Press, pp. 36–58. Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community, Amsterdam: Martinus Nijhoff. Frost, M. (2008), Global Ethics: Anarchy, Freedom and International Relations, London: Routledge. Ginsburg, T. and A. Simpser (2014), Constitutions in Authoritarian Regimes, Cambridge: Cambridge University Press. Grotius, H. (1625), The Rights of War and Peace, reprinted R. Tuck (ed.) (2005), Indianapolis, IN: Liberty Fund. Habermas, J. (2001), ‘Why Europe needs a constitution’, New Left Review, 11 (September–October), 5–26. Habermas, J. (2006), ‘Does the constitutionalization of international law still have a chance?’, in J. Habermas, The Divided West, Cambridge: Polity Press, pp. 115–93. Hegel, G.W.F. (1821), Elements of the Philosophy of Right, reprinted A. Wood (ed.) and trans. H.B. Nisbet (1991), Cambridge: Cambridge University Press. Hohfeld, W.N. (1918), Fundamental Legal Conceptions: As Applied to Judicial Reasoning, reprinted 1946, New Haven, CT: Yale University Press. Hurrell, A. (2007), On Global Order: Power, Values and the Constitution of International Society, Oxford: Oxford University Press. Ikenberry, G.J. (2006), Liberal Order and Imperial Ambition: Essays on American Power and World Politics, Cambridge: Polity Press. Ikenberry, G. John (2020), A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order. New Haven CT: Yale University Press. Isiksel, N.T. (2010), ‘Fundamental rights in the EU after Kadi and Al Barakaat’, European Law Journal, 16 (5), 551–77. Jackson, R. (2003), The Global Covenant: Human Conduct in a World of States, Oxford: Oxford University Press. Kant, I. (1990), Political Writings, H.S. Reiss (ed.), Cambridge: Cambridge University Press.

20  Handbook on global constitutionalism Klabbers, J., A. Peters and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford: Oxford University Press. Koskenniemi, M. (2013), ‘Histories of international law: Significance and problems for a critical view’, Temple International & Comparative Law Journal, 27 (2), 215–40. Kumm, Mattias. 2018. ‘On the history and theory of global constitutionalism’, in T. Suami, A. Peters, D. Venoverbeke and M. Kumm (eds), Global Constitutionalism from European and East Asian Perspectives, Cambridge: Cambridge University Press, pp. 168–99. Kumm, M., J. Havercroft, J. Dunoff and A. Wiener (2017), ‘The end of the “West” and the future of global constitutionalism’, Global Constitutionalism, 6 (1), 1–15. Lang, Jr., A.F. (2010), ‘Authority and the problem of non-state actors’, in E. Heinze and B. Steele (eds), Just War and Non-State Actors, London: Routledge, pp. 47–71. Lang, Jr., A.F. (2014), ‘Global constitutionalism as middle ground ethics’, in C. Navari (ed.), Ethical Reasoning in International Affairs: Arguments from the Middle Ground, London: Palgrave, pp. 106–26. Lang, Jr., A.F. (2017), ‘Global constituent power: Protests and human rights’, in A. Hehir and R. Murray (eds), Protecting Human Rights in the 21st Century, London: Routledge, pp. 19–33. Lang, Jr. A. F. (2021), ‘Global constitutionalism: A practical universal’, Global Constitutionalism, 10 (2): 367–75. Lewis, C.S. (1994), The Discarded Image: An Introduction to Medieval and Renaissance Literature, Cambridge: Canto. Lincott, A. (1999), The Constitution of the Roman Republic, Oxford: Oxford University Press. Liste, P. (2016), ‘Geographical knowledge at work: Human rights litigation and transnational territoriality’, European Journal of International Relations, 22 (1), 217–39. Locke, J. (1681), Two Treatises on Government, reprinted P. Laslett (ed.) (1988), Cambridge: Cambridge University Press. Locke, J. (1997), Political Writings, M. Gouldie (ed.), Cambridge: Cambridge University Press. Loughlin, M. and N. Walker (eds) (2007), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press. May, L. (2013), ‘Targeted killings and proportionality in law’, Journal of International Criminal Justice, 11 (1), 47–63. Mazower, M. (2012), Governing the World: The History of an Idea, New York: Penguin. McIlwain, C. (1947), Constitutionalism: Ancient and Modern, Ithaca, NY: Cornell University Press. McIlwain, C. (1958), Constitutionalism, Ancient and Modern, reprinted (2008), Indianapolis: Liberty Fund Press. Mearsheimer, John. 2019. ‘Bound to fail: the rise and fall of the liberal international order’, International Security, 43 (4), 7–50. Milliken, J. (1999), ‘The study of discourse in international relations: A critique of research and methods’, European Journal of International Relations, 5 (2), 225–54. Montesquieu, Baron C. de Secondat (1748), The Spirit of the Laws, trans. A.M Cohler, B.C. Miller and H.S. Stone (eds) (1989), Cambridge: Cambridge University Press. Nicholas of Cusa (1443), The Catholic Concordance, reprinted P. Sigmund (ed.) (1991), Cambridge: Cambridge University Press. Oakley, F. (2003), The Conciliarist Tradition: Constitutionalism in the Catholic Church, 1300–1870, Cambridge: Cambridge University Press. Onuf, N. (1994), ‘The constitution of international society’, European Journal of International Law, 5 (1), 1–19. Onuf, N. (1998), The Republican Legacy in International Thought, Cambridge: Cambridge University Press. Onuf, N. and P. Onuf (1993), Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814, Madison, WI: Madison House. Pettit, P. (2007), Made with Words: Hobbes on Mind, Society and Politics, Princeton, NJ: Princeton University Press. Polin, R. (1998), Plato and Aristotle on Constitutionalism: An Exposition and Reference Book, Burlington, VT: Ashgate.

Introduction  21 Polybius (1979), The Rise of the Roman Empire, trans. I. Scott-Calvert, F.W. Walbank (ed.), New York: Penguin. Rosenfeld, M. (1994), ‘Modern constitutionalism as interplay between identity and diversity’, in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives, Durham, NC, and London: Duke University Press. Sabaratnam, M. 2019. ‘Postcolonial and decolonial approaches’, in J. Baylis, S. Smith and P. Owens (eds), The Globalization of World Politics: An Introduction to International Relations, Oxford: Oxford University Press. Sending, O.J., V. Pouliot and I.B. Neumann (2015), Diplomacy and the Making of World Politics, vol. 136, Cambridge: Cambridge University Press. Shilliam, Robbie. 2021. Decolonizing Politics: An Introduction, Cambridge: Polity Press. Sieyès, A.E.J. (1970), Qu’est-ce que le Tiers état? éd. Critique (What is the Third State? Ed. Critique), with an introduction and notes by R. Zapperi, Geneva: Droz. Teubner, G. (2012), Constitutional Fragments: Societal Constitutionalism and Globalization, trans. G. Norbury, Oxford: Oxford University Press. Thornhill, C. (2011), A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective, Cambridge: Cambridge University Press. Tierney, B. (1982), Religion, Law, and the Growth of Constitutional Thought, 1150–1650, Cambridge: Cambridge University Press. Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Tully, J. (2002), ‘The unfreedom of the Moderns in comparison to their ideals of constitutionalism and democracy’, Modern Law Review, 65 (2), 204–28. Tully, J. (2008a), Public Philosophy in a New Key, vol. 1, Cambridge: Cambridge University Press. Tully, J. (2008b), Public Philosophy in a New Key, vol. 2, Cambridge: Cambridge University Press. Tully, J., J.L. Dunoff, A.F. Lang, Jr., M. Kumm and A. Wiener (2016), ‘Introducing integral constitutionalism’, Global Constitutionalism, 5 (1), 1–15. Vattel, E. de (1758), The Law of Nations, or Principles of the Law of Nature Applied to the Conduct of Nations and Sovereigns, reprinted with introduction by B. Kapossy and R. Whatmore (eds) (2008), Indianapolis, IN: Liberty Fund. Walt, S.K. (2016), ‘The collapse of the liberal world order’, Foreign Policy, June. Available online at: https://​foreignpolicy​.com/​2016/​06/​26/​the​-collapse​-of​-the​-liberal​-world​-order​-european​-union​-brexit​ -donald​-trump/​. Welsh, J. (2013), ‘Norm contestation and the responsibility to protect’, Global Responsibility to Protect, 5 (4), 365–96. Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters, Cambridge: Cambridge University Press. Wiener, A. (2014), A Theory of Contestation, Berlin: Springer. Wiener, A. (2018), Contestation and Constitution of Norms in Global International Relations, Cambridge: Cambridge University Press. Wiener, A. and S. Oeter (2011), ‘Constitutionalism unbound: Introducing theoretical triangulation for international relations’, unpublished research proposal, Science Foundation of the Hamburg Senate, University of Hamburg, Hamburg. Wiener, A. and S. Oeter (2017), ‘Introduction: Who recognizes the emperor’s clothes anymore?’, International Journal of Constitutional Law, 14 (3), 608–21. Wiener, A., A.F. Lang, Jr., J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global constitutionalism: Human rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–5. Williams, M.S. (2009), ‘Citizenship as agency within communities of shared fate’, in S. Bernstein (ed.), Unsettled Legitimacy: Political Community, Power, and Authority in a Global Era, Vancouver: UBC Press. Zink, J.R. (2013), ‘James Wilson versus the Bill of Rights’, Political Research Quarterly, 67 (2), 253–65.

PART I HISTORICAL ANTECEDENTS

2. Global constitutionalism: the ancient worlds Jill Harries

The Mediterranean world of Greece and Rome from 1500 BCE to the sixth century CE was a mosaic of widely varying political communities, ranging from tribes to small city-states to the ‘world-empire’, so called, of Rome. This milieu shaped the political thinkers of classical Greece and Rome, notably Plato, Aristotle, the Stoics, the historians Polybius and Livy, and the ever-versatile Cicero, who are among the founders of western constitutional thought. Despite the importance of the Axial Age for world history (Eisenstadt 1986), nothing will be said here of the other great civilisations of Antiquity, in Persia (Iran), China or India. One major difference may also prove instructive. The nation-state, on which so much modern constitutional theory is based, lay in the future. If, therefore, global constitutionalism anticipates a ‘post-national world’, analysis of pre-national modes of ‘constitutionalism’, and, in particular, the reasons for their failure, should contribute to modern debate. Modern ‘constitutionalism’, inspired by the examples of the French and American revolutions, incorporates ideals of democracy, human rights and the rule of law (Galligan 2014; Graber 2014). All these have some echo in the classical past – Athens was where democracy began (Woodruff 2006) and ideas on legal rights (though not necessarily human rights) and the rule of law are embedded in Roman Law, as codified in Justinian’s Corpus Iuris Civilis (529–534 CE). However, such inhibitions on the behaviour of ancient states towards each other as existed were not based on a codified ‘international order’. Alliances and confederations were formed from time to time, which entailed the creation of institutions, defined as a ‘relatively enduring collection of rules and organised practices, embedded in structures of meaning’ (Marsh and Olson 2009, p. 159), which facilitated cooperation among states. Their failure was seldom due to flaws in their institutional structure, but rather to various forms of self-interested activity on the part of member states, which disrupted the workings of the rules and conventions designed to constrain such behaviour. Ancient ‘constitutionalism’, therefore, on the ‘global’ or universal level, cannot be discussed purely in terms of formal structures. For legal agreements between states to work, they would be expected to conform to the tacitly agreed standards of unwritten law, which preceded the formation of states. Contrary to the modern focus on a written document, Greeks and Romans gave precedence to the unwritten, on the grounds that it was based on consent and universal values, and therefore required no written validation. It follows that the ancients did have a concept of the rule of law, meaning a system of legal rules and conventions, to which even the most powerful were subject. However, what happened in practice was often very different. The meaning of ‘constitution’ (Greek politeia) was also broader than its modern equivalent. Graeco-Roman political structures evolved out of small, largely autonomous, face-to-face communities, which did not see ‘the state’ as something separate or ‘other’. ‘Constitutions’ therefore referred to how the community was ‘constituted’ in the widest sense, including households, and economic and social institutions. The process of ‘coercion by legitimate force’, of which modern ‘states’ hold a monopoly, was the duty of the community as a whole; 23

24  Handbook on global constitutionalism those who committed criminal acts damaged ‘the public’ and were subject to the jurisdiction of ‘the people’. Ancient constitutional thought was based on the community of citizens (polis or civitas), and ancient Greeks and Romans extrapolated inter-state legal and constitutional norms and procedures from what was familiar to them on a smaller scale within their citizen communities. Indeed, the two were linked; one problem noted by Cicero, as the government – though not the institutions – of the Roman Republic became increasingly monarchical, was that the affective relationships between the citizens of a community limited by territory and population were endangered, if not destroyed, by the ‘internationalisation’ created by the expansion of the Roman Empire – a development with significant implications for how the Roman res publica was itself constituted (Hammer 2014).

COSMOS AND POLITEIA Although much of planet Earth was unknown to the Greeks and Romans of the ancient world – making the use of the term ‘global’ inappropriate – they shared a concept of the ‘cosmos’, and thus of what might be termed universality. The ‘cosmos’ was conceived by, among others, the Stoics, as a single ‘community of citizens’, subject to the universally applicable ‘law of nature’. Although natural law could be discussed in terms of institutions, such as slavery, which were held by some to be universally applicable, the Stoics tended on the whole to discuss natural law in terms of rules applying to the moral conduct of the individual; their world-city was an abstract, the preserve of a wise elite, and they had neither the power nor the inclination to give it institutional or constitutional form. Still, a Stoic could formulate, in his terms, a theory of global constitutionalism. In the after-hours musings of the Roman emperor Marcus Aurelius (reigned 161–180 CE), compiled while on campaign in Central Europe in the 170s, all things in the Cosmos (of which Asia and Europe were small ‘corners’) were related to each other and of the same kind (Meditations 6.37, translated in Haines 2014). The nature of a man is reasonable (logike) and attuned to the life of the community (politike), but he is also a member of two communities, his own city and the Cosmos (Meditations 6.44, in Haines 2014). ‘Constitutions’ (Greek politeiai), however, applied only on the city-state level; could they acquire a ‘global’ dimension? The answer (Meditations 4.3, in Haines 2014) was to equate the Cosmos itself with the city-state (polis), the Cosmos being the highest city of all, while the peoples of the other cities were assimilated to households (oikiai) which both constituted and were contained within the highest city (Meditations 3.11, in Haines 2014). From this it followed that it was possible to affirm a common law for the citizens of the Cosmos-as-city, which would be guaranteed by the divine power, which upheld the cosmos: All ‘reasonable’ men should obey the laws set down by this city (polis) and constitution (politeia). If reason was shared by all men, then law (nomos) also is shared by all; if this be so, we are citizens; if this be so, we are sharers in one constitutional order (politeuma); . . . surely then the whole race of men is subject to a constitutional order, which they hold in common (Meditations 4.4) . . . ‘there is one cosmos, one God through all, one substance and one law’. (Meditations 7.9, in Haines 2014)

In summary, a man is a citizen in this great city (the Cosmos), and what is according to its laws applies equally to every man (Meditations 12.36, in Haines 2014).

Global constitutionalism: the ancient worlds  25 Marcus Aurelius’ thoughts were those of an emperor who could, in theory, have put them into practice. In fact, he provides no evidence for the practical application of Stoic universality beyond philosophical circles. Stoic ideas did affect legal thought and the argument that justice was innate in man, advanced by Cicero among others (Cicero 1998, Laws, bk 1) allowed a connection to be established between the ‘laws of nature’, the characteristics common to all people, or to all living things, and international law, the ‘law of all peoples’ (Roman, ius gentium). However, Marcus Aurelius’ ‘laws’ largely concern the moral conduct of the individual, not the operation of international law. The emperor, a philosopher at night, was a general by day, leading the Roman armies in a protracted series of campaigns against the ‘barbarian’ peoples on the Danube, whose incursions posed a threat to Roman security. ‘Barbarians’, be they Celtic or Germanic tribes, or the subjects of the Persian Kings were the permanent ‘other’ (Hall 1989). Anachronistic stereotypes were common in ancient literature (Woolf 2011), although, fortunately, much-travelled types, such as the fifth-century BCE historian Herodotus, produced more nuanced accounts (Gruen 2011) and the divisiveness of some literary representations did not invariably extend to the realities of diplomatic or personal relationships. Marcus’ sustained military campaigns against perceived threats to Rome’s frontiers show the limits of his philosophy; at no point did he ask himself whether the laws of his Cosmos also applied to the enemies of Rome.

POLITEIA AND THE GREEKS Beyond philosophical circles, citizen communities in the Graeco-Roman world evolved ties with, and obligations to, each other. The Greeks’ civilisation from the eighth century BCE onwards, though largely based round small, autonomous city-communities (poleis) was located in what they called the ‘Oikumene’, the world ‘inhabited by them’ from the Black Sea to the coasts of Spain (Malkin 2011). Greeks shared a common alphabet and language, gods, heroes and their cults (often expressed in localised form), the poems of Homer and the plays of Euripides. Their aristocracies intermarried, their military theorists and generals developed comparable systems of warfare. There were networks created by intellectuals, who travelled between cities educating the young, and artisans, architects and sculptors helped to create a Greek visual identity, expressed in town planning, monumental structures and artwork. Greeks abroad could look with confidence for an agora (marketplace) and for temples to gods, whose names at least were familiar. Crucially, they also shared ideas of how nomima, the laws and institutions governing the workings of a polis, came into being, often through a named founder or lawgiver. Through initial acts of colonial foundation, which created ties, not always harmonious, between ‘mother’ and ‘daughter’ city, and complex networks of trade links, the Greeks evolved a shared ‘pan-hellenic’ identity; the Mediterranean became a space, which they ‘shared’ but did not ‘own’. Within this space, the poleis were linked by a further network of bilateral or multilateral treaties (Streets 1994). While this has echoes in modern ideas of globalisation, the tensions between the exclusiveness of polis culture, on the one hand, and the need to cooperate for the security and benefit of all, on the other, were never satisfactorily resolved. Citizen communities had their own legal systems and, as noted above, their ‘constitutions’ comprised the ways in which the city community as a whole was ‘constituted’. For example, the Spartan constitution, ascribed to the legendary lawgiver Lykourgos, defined the powers

26  Handbook on global constitutionalism of the institutions of government, the kings, council of elders (Gerousia), the five chief magistrates (ephors) and the Assembly of the People. However, the Spartans also credited Lykourgos with their distinctive system of education (or social conditioning) and military training, family life (or lack of it, as boy children were removed from the family house at the age of 7 years) and the contributory dining clubs (syssitia), where the adult citizen-soldiers spent much of their time (Hodkinson 2009). The Greek historian Polybius’ famous account of the Roman politeia (Polybius 1979, bk 6, chs 3–57) ascribed Roman success not only to its institutions of government but to the efficiency of its organisation and its military establishment (Erskine 2013). Although many analysts of politeiae avoided extending to a wider sphere their thoughts on how citizen communities were constituted, Polybius (second century BCE) believed that the ‘fortunes’ of states were interrelated and their conduct regulated by an agreed set of conventions. Of particular concern were the justifications for declaring and making war (the origin of debates on the ‘just war’); the ending of war through the making of a treaty; the protection to be afforded heralds and ambassadors; and the use of arbitration to resolve conflict. The Romans also made limited, sporadic attempts on a rudimentary level to frame inter-state law (the ius gentium) in terms of the values, such as fides (trust), and procedures, such as the law on redress (res repetundae), familiar to them from their citizen-law; deditio in fidem, for example, surrender at discretion, imposed a moral obligation on the victors to show restraint. Inter-state law therefore occupied an indeterminate middle space between the recognized institutions of the citizen community and the universality of natural law.

MODERN QUESTIONS, ANCIENT ANSWERS Martin Loughlin (2010, pp. 49–50), following Paine, has identified four features of modern constitutions. First, a constitution ‘is a thing – and specifically it is a document’. Second, it is ‘antecedent to a government’ and ‘is not the act of a government but of the people constituting a government’. Third, a constitution must be comprehensive. Fourth, it has status as ‘fundamental law’ and the government must act in accordance with the constitution; the government cannot alter the constitution, as the power to change the fundamental law rests with the people, as the constituent power. Modern thinking has further defined the ‘fundamental law’ as both constitutional norms and positive law based on those norms. To take the four criteria, with special emphasis on the first two. First, the existence of a ‘document’ implies a single act by the ‘constituent power’. True, many ancient communities ascribed their ‘constitutions’ to the act of a single lawmaker or nomothete, as the Spartans did to Lykourgos and some law-codes, such as that of Gortyn in Crete in the sixth century BCE, were set up in inscriptional form (Davies 1996). Lykourgos’ reforms were not, however, codified in writing and Sparta, like many Greek poleis, had no written constitution. Moreover, despite the emphasis on the single lawgiver, many Greeks appreciated that the building of a constitutional order was an evolutionary process. The institutions of government and society ascribed to Lykourgos were the product of centuries of evolution at Sparta; the introduction of the ephors, long after the other three institutions of government, illustrates that a constitution may not be ‘comprehensive’ at the outset (although it must, for practical reasons, cover all the functions of government). In Athens, the reforms of their most respected lawgiver, Solon (circa 594 BCE), who established a Council of 400 and an assembly consisting of four wealth

Global constitutionalism: the ancient worlds  27 classes, acquired canonical status. However, they resulted, not in democracy, but aristocratic factionalism, followed by the sole rule of the ‘tyrant’ Peisistratos and, after him, his sons (546–510 BCE). Only after the ruling family were expelled were the institutions central to the operation of the Athenian democracy created, and decades of further tinkering by the ruling assembly were required to empower the demos and remove the last vestiges of aristocratic control. Later, the Romans too would argue that the best possible constitution could only be the product of a drawn-out and contested historical process: both Cicero (1998, Republic, bk 2, chs 10–63) and Livy (1971) saw the ‘constitution’ of the res publica in the first century BCE as being the product of incremental change, initiated by the seven kings (eighth to sixth centuries BCE) and continued from the fifth century BCE onwards, through repeated conflicts, sometimes violent, between oligarchic (or senatorial) and popular interests. Second is Loughlin’s contention that the ‘people’ must be antecedent to the government, which the constitution authorised by them brings into being. There are problems here concerning how the ‘people’ as a legally constructed entity can predate the constitution, which embodies the ‘fundamental law’: ‘is there a fundamental law – that which constructs the people (the original compact) – which lies behind the fundamental law that authorises positive law?’ (Loughlin 2010, p. 51). Ancient theory and practice had several solutions to this. First, as we have seen, the ‘constituting’ of citizen communities (including their governments) was a process, taking place over a period of time; the ‘people’ could thus be both participants in, and legitimators of, the process of state creation. Second, although the ‘people’ had a crucial role in some ‘constitutional’ narratives (such as those of Cicero and Livy on early Rome), identifying a single ‘constituent power’ was problematic. Authority was diffused and contested: tendentious versions of past history and exemplary characters were shaped by contemporary issues and agendas; the patrios politeia, the ‘ancestral constitution’, as constructed and reinterpreted by later generations fuelled Athenian constitutional debate; at Rome a similar function was performed by the binding and unwritten conventions associated with the mos maiorum, the ‘customs of our ancestors’ (literally, ‘the greater ones’). Third, the ancients, like modern constitutionalists, required a fundamental – or ‘higher’ – law, to predate the formation of human societies and provide the norms, which people (and peoples) were expected to observe. Unlike moderns, ancient people had no problem with identifying the source of that law. Its authority derived, not from the ‘people’ or any other human agency, but from the gods, and the universal values, such as justice and honour or trustworthiness, which they were expected to uphold. Although the gods are not usually pressed into service as a tool of analysis in academic debate, for ancient peoples their impact as guardians, guarantors and enforcers of the universal values associated with natural law and with justice, was very real. Their authority bore heavily on the oath-maker – still more on the oath-breaker – their temple sites were the locations for the formation of Greek leagues of poleis united by shared cults (as well as self-interest), and an assortment of divine protectors was ritually invoked by the Romans in the formal preliminary stages required for the launch of the ‘just war’.

28  Handbook on global constitutionalism

DEMOCRATISM AND HEGEMONY: THE FAILURE OF THE GREEK EXPERIMENT In his analysis of the Confederation of the American States, James Madison (Madison et al. 1987, Federalist Papers no. XVIII) drew on the analogy of the ancient Greek Leagues, with a view to analysing their constitutions as leagues of independent cities and the grounds for their failure. One, the Amphictyonic League, was based at Delphi in the fourth century BCE and administered by a ‘federal’ council. The member cities were bound by oath to provide military protection to the rest, as well as protect the shrines and temples of Apollo’s sanctuary, and could be penalised if they refused. The authority of the organisation derived in part from its connection with Apollo, or, as Madison put it, ‘the Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained’ (Madison et al. 1987, p. 160). For various reasons, mostly to do with divisions among the member states, the League fell victim to the expansionist designs of Philip of Macedon, the father of Alexander the Great, as Madison noted elsewhere (Madison et al. 1987, p. 281, Federalist Papers no. XLIII, para. 6), citing Montesquieu, that ‘Greece was undone…as soon as the King of Macedon obtained a seat among the Amphictyons’). Madison’s favourite, the Achaean League, (re)founded in circa 280 BCE, was a ‘Union’, which was ‘more intimate and its organisation much wiser than in the previous instance’ (Madison et al. 1987, p. 161, Federalist Papers no. XVIII). The political thought embodied in its ‘constitution’, as recalled later, was of more long-term significance than the League itself. The version of events offered by the historian Polybius, himself an Achaean, therefore deserves attention, not because of its accuracy in every detail but because Polybius’ representation of the Achaean League anticipates many of the ideals, which now underpin global constitutionalism and thus also offers warnings as to why such idealistic enterprises may fail. In his analysis of the causes of the Achaeans’ success (as he saw it), Polybius highlighted the importance of consistency. The Achaeans, he alleged, had been democrats, who cooperated well with others for a long time and were well known for it. In the latter part of the fifth century, an Achaean delegation had been brought in to advise a cluster of quarrelsome cities in southern Italy on a constitution for a League and the four cities involved agreed to set up a meeting place at the temple of Zeus of the Boundaries (Zeus Homaios) and ‘adopt the laws and customs of the Achaeans’ (Polybius 1979, bk 2, ch. 39). The Achaeans back in southern Greece were slower off the mark, because, although a confederacy of democratic cities had existed for a long time, they suffered from the malign attentions of the Hellenistic monarchs of Macedon from the mid-fourth century, and, like the Amphictyonic League, failed to hold together. In circa 280 BCE, however, a further group of five cities established the Achaean League, centred on the Temple of Hera, and over the next years were joined voluntarily by seven more (Polybius 1979, bk 2, ch. 41, pp. 152–3). In the Achaean Polybius’ opinion, the ‘allied and friendly community’ of the Achaeans, with its shared laws, weights, measures and coinage, along with a set of governing institutions, magistrates, a council (Boule) and law-courts differed from a single city, only in that its inhabitants were not surrounded by a single city-wall (Polybius 1979, bk 2, ch. 37). For Madison, following the Abbé Mably, the League was admirable because its constitution inhibited the excesses of ‘popular government’; elsewhere: ‘because it was there tempered by the general authority and laws of the confederacy’ (Madison et al. 1987, Federalist Papers no. XVIII, p. 162). Polybius, indeed, was more in line with modern western values when he stated,

Global constitutionalism: the ancient worlds  29 without reservation, that the Achaean League safeguarded freedom of speech, equality and democracy: ‘It would be impossible to find anywhere a political system or guiding principle, which allowed more equality (isegoria) or freedom of expression (parrhesia) or which most closely represented true democracy (alethine demokratia) than that of the Achaean League’ (Polybius 1979, bk 2, ch. 38). However, all was not as well as might appear for this mini-example of a nascent global constitutionalism, entailing as it did an ostensibly harmonious alliance of equal and democratic states. Cooperation, as so often, conflicted with the general Greek desire for autonomia, rule by their own city laws. Membership of the League entailed the pooling of sovereignty, as members met in a ruling Council, and the sacrifice of some autonomy for the sake of the collective interest. Their policy towards cities and powers outside the League was collectively decided and the armed forces of the League were under the command of generals, first a pair, initially chosen by the cities in rotation (280–255 BCE) and thereafter a single commander with wide powers, elected by the League as a whole. Moreover, it did not follow from the democratic principles on which the League rested, that the right of self-determination of other states would be honoured. Not all members of the League were there because they chose to be: ‘This (democratic) constitution found some of the Peloponnesians ready to adopt it of their own free will; many others were induced by persuasion and argument to take part, while those who were obliged to accept it by force, when the time came soon found themselves appreciating its benefits’ (Polybius 1979, bk 2, ch. 38). And, elsewhere: (their policy was) to invite other cities to share in their equality and freedom of speech – and to make war on and subdue all those who, either on their own account or with the help of the kings, tried to enslave any of the states within their borders. . . . They finally achieved this aim, partly through their own efforts and partly with the help of their allies. (Polybius 1979, bk 2, ch. 42, pp. 154–5)

Polybius’ account, therefore, acknowledges both the ideal of an inter-state ‘order’ based on shared values and a shared constitution, and the forces which could potentially undermine its credibility as a moral force for good. The ‘rightness’ of the League is reinforced by a delineation of its opponents as ‘the other’. The forced inclusion of other cities is justified not only on practical but also on ideological grounds; individual members were brought in after the overthrow or abdication of tyrants or other hostile regimes (Polybius 1979, bk 2, ch. 44, p. 156). Thus in Polybius’ view, the ‘free’ Achaeans had the ‘right’ to incorporate other states because they had colluded with the hostile monarchies and with the ‘enslavement’ of other Greeks. Rivals for power and influence were likewise demonised. The motives of kings (with whom, as Polybius admits, the League did ally for prudential reasons) were by definition self-interested (as those of the League were not): ‘kings do not look on anyone as an enemy or an ally on account of their personal qualities, but always reckon friendship or hostility in terms of advantage’ (Polybius 1979, bk 2, ch. 47, p. 159, of the League’s diplomatic overtures, led by Aratus of Sicyon, to Antigonus of Macedon). Particularly suspect was the rival Aetolian League, whose members, according to the historian, suffered from ‘a perpetual lust for plunder’, hence their unprovoked attacks on others, ‘who had done them no wrong’ (Polybius 1979, bk 2, ch. 44, p. 156); they were, in Polybius’ eyes, greedy, duplicitous and unprincipled. Competition for territory, allies and influence, which resulted in successive shifting alliances and small wars, explains the confrontational rhetoric; and the failure to observe in practice the ‘constitutionalism’ inherent in the values celebrated by Polybius, explains why, despite the

30  Handbook on global constitutionalism ideals present at its foundation, the Achaean League was bound, in the end, to fall, along with the other squabbling poleis of Greece, to the superior military power of Rome. As Madison observed, the fate of the Greek confederacies ‘supplies us with valuable instruction’. In Madison’s view of the Amphictyonic League, ‘the more powerful members, instead of being kept in awe and subordination, tyrannised successively over all the rest’ (Madison et al. 1987, p. 160). Just dealings between cities became a hostage to power-plays: ‘the deputies of the stronger cities awed and corrupted those of the weaker . . . and judgement went in favour of the more powerful party’ (ibid.). This was not new. Referring to the failure of the Hellenic League, brought together in 481 BCE to coordinate the ultimately successful resistance to Xerxes’ invasion of Greece, Madison complained of ‘the inefficiency of the Union, the ambition and jealousy of its most powerful members and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude’ (ibid.). Such abuses of power subverted the constitutional order, which underpinned successful cooperative relationships between poleis. In celebrating the democratic character of the Achaean League, Polybius opened the way for ‘democratisation’, expanding the reach of the League through the imposition of a democratic system on others for their own good. Moreover, the (alleged) superior virtue of the Achaean League as a successful democratic ‘union’ justified the incorporation of unwilling cities, and the use of coercion on weaker communities by the superior collective strength of the League. The assertion of exceptionalism, based on unexamined assumptions of moral superiority, was maintained by a denial of the subjectivity of opponents and enemies, precluding any concession that their conduct might have been, in its own terms, either rational or principled.

ROME: LAW AND PARTNERSHIP Rome’s most durable models of cooperation invoked the principle of consent, based on what were taken to be universally agreed values. Cicero’s definition (1998, On the Republic, bk 1, ch. 39, p. 19) of a legally constituted ‘people’ (populus), as opposed to a ‘multitude’ was that it was ‘brought together in a partnership’ (sociatus), based on legal consent and for the benefit of all; the populus thus came into being simultaneously with its being ‘constituted’ as a legal entity, although no document or written law marked the moment. In citing ‘justice’ with the gods, as guarantors of ‘natural’ law, Cicero underlined the importance of observing an agreed set of moral and cultural norms, which applied to relationships between individuals and communities alike. Moreover, he phrased the relationship in terms, which, for Romans, carried significant legal connotations. A relationship of partnership between individuals or between peoples had to be based on mutual advantage, and trust (fides), with obligations created for both sides. Breach of faith was thus both a legal and a moral failure. It was characteristic of their legalistic approach to relationships with other states that the Romans described their allies as socii, partners; this was a more inclusive term (despite its drawbacks in practice) than the Greek equivalent, symmachoi, ‘those who fight alongside us’, emphasising as it did both the security and the reciprocity of a relationship grounded in law (for the facts of allied subordination, see Lavan 2013, pp. 35–53, 61–72). When, in 91–88, the socii went to war with Rome, seeking equal recognition (or, failing that, total separation), the concession of Roman

Global constitutionalism: the ancient worlds  31 citizenship to all allied communities south of the Po would have been eased by the consciousness that they were, in some sense, partners already. Several decades after Cicero’s death, the historian Livy elucidated his view of the conventions governing inter-state relations in his history of the foundation and rise of Rome. At the core of this were the procedures enshrined in the ‘fetial law’ (ius fetiale), a set of actions prescribed by ritual, the performance of which ensured that the wars engaged in by the Romans were ‘just’ (Livy 1971, bk 1, ch. 32, pp. 69–70; cf. Cicero, 1998, On the Republic, bk 2., ch. 31). The process was ascribed to the third or fourth king of Rome (late seventh century BCE, 135), and some detail, such as the tight timescale of just over a month, reflects its origins in Rome’s dealings with neighbouring states. However, the surviving text probably dates from the late Republic and incorporates some assumptions from that period. According to the priestly formula, the ius fetiale covered the journey of the Roman envoy, the fetial priest or his delegate, the pater patratus, to the offending state, the statement of the grievance and the process of negotiation. If the negotiation failed (and was formally declared to have failed), the envoy returned to receive further instructions at Rome. After debate and agreement by Senate and people a state of war was formally declared through a further prescribed set of words and actions. The Romans’ ‘just war’ was framed in terms of correct legal procedure, which ensured that a declaration of war would conform to the requirements of law and justice. The process initiated by the fetial envoy was analogous to what was recognised in Roman law as ‘restitution’ (res repetundae), where the aggrieved party sought restitution and perhaps compensation for losses inflicted by the defendant. It therefore mimicked the course of a lawsuit: the complaint was lodged (the envoy’s journey); there was a hearing between the parties (the negotiation between the plaintiff, Rome, and the defendant, the allegedly offending state); the judges (the Roman Senate and people) reached their verdict; and, after due process has ensured a ‘just’ outcome, war was declared. This process also precluded any waging of an undeclared or deniable war, a course consistently repudiated by the Romans as deceitful and therefore incompatible with honour and good faith. The upholding of trust (fides) as a necessary precondition for effective dealings between states is central to Livy’s account. The gods appear as guarantors of fides: a king who deceitfully manipulates the fetial ritual later perishes in his palace when it is struck by lightning; Roman soldiers who fail to fight, having taken an oath to do so, ‘will find themselves at war with the gods’ as well as the human enemy (Livy 1971, bk 3, ch. 2, cf. also bk 2, ch. 46); a dissident tribal leader who insults Roman envoys by claiming, in their presence, to be ‘unavailable’, is outwitted when the envoys call a sacred tree (and its associated gods) to witness his breach of diplomatic etiquette (Livy 1971, bk 3, ch. 25). Even when the Romans have the power to get away with it, as when they expropriate a territory made the subject of arbitration by two lesser cities, the considerations, which should have prevented them are highlighted: the action was criminal in itself and set a worse precedent; friends would be alienated, the honour and reputation of Rome damaged (Livy 1971, bk 3, ch. 71). In the absence of institutions with the authority to uphold an international order, the gods, backed by the facts of history, substituted as enforcers. For Livy, breaches of fides between states led inevitably to catastrophe, the more so when every institution of the res publica was complicit in wrong-doing. In circa 390 BCE, Rome breached the ‘unwritten law of all mankind’ (Livy 1971, bk 5, ch. 37) in the weeks preceding her defeat by the Gauls at the battle of the river Allia (circa 390 BCE). Envoys sent to negotiate with the invaders violated the

32  Handbook on global constitutionalism ius gentium (Livy 1971, bk 5, ch. 36) and attacked the Gauls without warning. The Senate, on hearing of this, allowed collective self-interest to override justice, referring the case to the people instead; the populus, for its part, failed to punish the offenders for this breach of both the ius fetiale and the ius gentium, and instead elected them to high office. The result was the virtual annihilation of Rome’s army by the Gauls, the Sack of Rome and the mass murder of senators; the anniversary was commemorated thereafter as a Day of Ill-omen (dies nefastus). Collective guilt brought down total disaster on the whole community. Livy’s perspective on the enforcement methods of the gods as guarantors on the international order will not impress the modern reader. However, resort to the gods was in part an acknowledgement that if states were to be able to negotiate and communicate with each other, declare war formally, make peace and then abide by the treaties which ended the conflict and prevented its resumption in the future, some authority was required with not only moral but also (or so it was believed) coercive powers. Modern ideas of global constitutionalism invoke the desirability of consent; so might the Romans have done, had they believed that consent alone was enough.

CONCLUSION All peoples, who lived round the ancient Mediterranean, subscribed to a set of values, which they held to be universal and applicable to everybody, based on natural law and the ius gentium. These were held to predate the founding of cities. Despite the veneration accorded to individuals, credited with the creation of law-codes and city constitutions, many influential Greeks and Romans believed that successful and stable ‘constitutions’ emerged as the result of an evolutionary process. Popular endorsement or acquiescence was expected but the role accorded the ‘people’ by such elite writers as Cicero fell far short of that of the pouvoir constituant of modern thought. Expressing the values shared by all, in the context of communities’ dealings with each other, were a set of unwritten rules and conventions, such as those guaranteeing (as a rule) the safety of envoys, in exchange for their correct behaviour, the declaration of war, which must be ‘just’, and the making of peace. However, there was little constraint on how wars were conducted, and victory, because it ‘proved’ divine favour, was its own justification. Cities were sacked, even after a formal surrender, whole populations massacred, enslaved or transplanted to new sites (sometimes along with their ‘conquered’ gods), atrocities committed with the deliberate intention of inspiring terror. While reservations over the excessive use of force or violence were expressed, the use of extreme cruelty was justified, if proved, by the gods’ granting of victory, to be ‘just’. The early Greeks created a network of small states with a common culture, which cooperated in various ways, while jealously guarding their autonomy. The tensions created by the pooling of sovereignty, usually for purposes of joint security, made Greek alliances inherently unstable, although many lasted for centuries. They failed for multiple reasons: because the external threat was removed; or because dominant city-states abused their power, so that hegemony was perverted into leadership based on coercion, not consent, and democracy into the expansionist ideology of democratisation. However, it was the Greeks first, not the Romans, who formulated ideas of universality and who analysed the reasons why leagues between peoples succeed and why they fail.

Global constitutionalism: the ancient worlds  33 The Romans’ observance of technicality, as in the ritual of the ius fetiale, reflected a culture in which respect for law, and the sense of the connection of law with the universal divine order, was ever present. Once established, in their own eyes, as an imperial people, the Romans, unlike the feuding Greeks, had no incentive to formulate (or observe) conventions on how to deal with equals. After creating ‘wastelands’ over centuries of warfare and conquest, the Romans under the Empire capitalised on their success in war by imposing a new world order, the pax Romana (Morris 2015, pp. 32–52) based on military dominance, discreetly exercised, and active support for the continuing power of local oligarchies. This was combined with the gradual incorporation of the conquered peoples into their citizenship, with its access to the benefits and remedies of Roman law, but the variety of indigenous cultures was retained along with local applications of legal pluralism. Roman autocracy gave rise to an era of stability, security and prosperity, which endured for hundreds of years; the price for the governed was forfeiture of autonomy and self-determination.

REFERENCES Cicero, M.T. (1998), The Republic and the Laws, trans. N. Rudd, introduction and notes by J. Powell, Oxford: Oxford University Press. Davies, J. (1996), ‘Deconstructing Gortyn: when is a code a code?’, in L. Foxhall and A.D.E. Lewis (eds), Greek Law in its Political Setting: Justifications not Justice, Oxford: Oxford University Press, pp. 33–56. Eisenstadt, S.N. (ed.) (1986), The Origins and Diversity of Axial Age Civilisations, Albany, NY: State University of New York Press. Erskine, A. (2013), ‘How to rule the world; Polybius Book 6 reconsidered’, in B. Gibson and T. Harrison (eds), Polybius and His World. Essays in Memory of F.W. Walbank, Oxford: Oxford University Press, pp. 231–46. Galligan, D. (ed.) (2014), Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham, Oxford: Oxford University Press. Graber, M. (2014), A New Introduction to American Constitutionalism, Oxford: Oxford University Press. Gruen, E. (2011), ‘Herodotus and Persia’, in E. Gruen (ed.), Cultural Identity in the Ancient Mediterranean, Los Angeles, CA: Getty Research Institute, pp. 67–85. Haines, C.R. (2014), Marcus Aurelius, Meditations, Cambridge, MA: Harvard University Press. Hall, E. (1989), Inventing the Barbarian; Greek Self-definition through Tragedy, Oxford: Oxford University Press. Hammer, D. (2014), Roman Political Thought: From Cicero to Augustine, New York: Cambridge University Press. Hodkinson, S. (ed.) (2009), Sparta: Comparative Approaches, Swansea: University of Wales Press. Lavan, M. (2013), Slaves to Rome: Paradigms of Empire in Roman Culture, Cambridge: Cambridge University Press. Livy (1971), The Early History of Rome, trans. A. de Selincourt, London : Penguin. Loughlin, M. (2010), ‘What is constitutionalism?’, in P. Dobner and M. Louglin (eds), The Twilight of Constitutionalism?, Oxford: Oxford University Press, pp. 47–69. Madison, J., A. Hamilton and J. Jay (1987), The Federalist Papers, I. Kramnick (ed.), London: Penguin. Malkin, I. (2011), A Small Greek World: Networks in the Ancient Mediterranean, New York: Oxford University Press. Marsh, J.G. and J.P. Olson (2009), ‘Elaborating the “New Institutionalism”’, in R.E. Goodin (ed.), Oxford Handbook of Political Science, Oxford: Oxford University Press, pp. 159–75. Morris, I. (2015), War: What Is It Good For? The Role of Conflict in Civilisation from Primates to Robots, London: Penguin. Polybius (1979), The Rise of the Roman Empire, trans. I. Scott-Kilvert, London: Penguin.

34  Handbook on global constitutionalism Streets, G.A. (1994), ‘Conceptualizing international law in Thucydides’, American Journal of Philology, 115 (1), 51–73. Woodruff, P. (2006), First Democracy: The Challenge of an Ancient Idea, Oxford: Oxford University Press. Woolf, G. (2011), ‘Saving the barbarian’, in E. Gruen (ed.), Cultural Identity in the Ancient Mediterranean, Los Angeles, CA: Getty Research Institute, pp. 255–71.

3. Medieval constitutionalism Francis Oakley

In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control in government, but experience has taught the necessity of auxiliary precautions. (Hamilton et al. 1788 [2009], p. 264)

If we take as point of departure this pithy summation by James Madison, we are bound to concede that for much of the period of European history labelled by stubborn historiographic convention as ‘medieval’, it was the grinding challenge of controlling the governed rather than any luxurious preoccupation with the government’s controlling itself that dominated the thinking of those who were called upon to rule. The government involved was monarchical. In these respects, the early-medieval centuries marked no great departure from the millennial monarchical past. In terms, of its antiquity, its ubiquity, its wholly extraordinary staying power, the institution of kingship can lay strong claim to having been the most common form of government known, worldwide, to humankind. In this respect, as Cerfaux and Tondriau once put it, the classical era of city-states becomes, world-historically speaking, no more than a ‘republican parenthesis’ (Cerfaux and Tondriau 1957), an isolated republican island whose shores were lapped by an all-encompassing monarchical sea. Consigned thereby to merely provincial status are the constitutionalist, consensual, representative, republican and democratic forms that bulk so large on our contemporary political landscape, and to which those of us concerned with constitutional history and political philosophy have characteristically devoted the bulk of our attention. In so doing, we have tended to take for granted the drainage of legitimacy from the age-old ideological pattern that, in one form or another, had for long millennia sustained the monarchical institution. Yet, in terms of its ubiquity and longevity, that ideological pattern can lay credible claim to having been nothing less than the political common sense of humankind; and like the institution of kingship itself, that common sense turns out to have been deeply embedded in the sacred and thoroughly informed by it. For, ‘that kings are sacred,’ it has been well said, is ‘an anthropological and historical truism’.1 All of which is worthy of mention in the present context because that millennial sacrality was to constitute a formidable obstacle to the maturation of notions of constitutionalist constraint. How could it not have done so? Sacral kingship was grounded right across the globe in one or other form of cosmic religiosity to which the very distinctions that Westerners are accustomed to making between nature and supernature, between animate and inanimate, between nature, society and man were almost wholly lacking. In the context of that cosmic religiosity, after all, the most fundamental responsibilities of the sacral king extended far beyond the realm of what we are accustomed to defining as the ‘political’, extending into the very preservation of the natural order by a complex system of ritual and taboo, the prevention For the claims made here about the archaic sacral kingship and its extraordinary staying power, and for full references to the pertinent scholarly literature, see Oakley (2006, 2010). The words cited above are from Gilbert (1987). 1

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36  Handbook on global constitutionalism of natural catastrophe, and the ‘harmonious integration of man and human society with nature’ (Oakley 2006, p. 15; 2010, p. 21). Clearly a sharp break with that way of apprehending the ‘political’ was a necessary presupposition for the emergence of the sort of constitutional forms and processes that the editors of this Handbook have identified in their introduction (Chapter 1). Also, the key factor precipitating that break was the impact of the biblical vision of God as one, omnipotent, and transcendent on the way in which the realms of nature and society came to be understood. That vision of God was very much at odds with the archaic notion of an immanent divine continuum linking humankind with nature and the political order with the cosmos. As a result, it came across time to undermine the cosmic religiosity that was itself the very foundation for the archaic pattern of sacral kingship and for the understanding of the political order as in some sense ‘the embodiment of the cosmic totality’. The desacralizing process thus initiated was accelerated by the revolutionary New Testament separation of religious from political loyalties and by the demotion of the polis to the status of a merely secular entity. However, given the complex (and compromising) accommodations that the Church Fathers made with archaic patterns of thinking that complex process of desacralization took an unconscionably long time to gain any real intellectual and social traction. In the Byzantine East and, for long centuries, in the Latin West, the ‘political’ continued to be comprehended as embedded in the sacred or, to put it in Christian terms, as something pertaining ultimately to the order of redemption (Oakley 2006, 2010). The legislation of the Emperor Justinian (527–65) extended into almost every nook and cranny of ecclesiastical life, and he did not hesitate to embrace the ancient, Hellenistic notion that God had sent the emperor to serve for men as himself an ‘incarnate law’ (nomos empsychos; lex animata). In the early-medieval Latin West, as in the Eastern Empire throughout its history, a priestly character was attributed to king and emperor alike, who (in this like bishops) were anointed in a sacramental rite derived from the ancient Near Eastern ritual for the transference of someone from the realm of the profane into that of the sacred, and whose office, bestowed it was thought by gift of God, came to be markedly clericalized and described in terms that were not merely theocentric but (increasingly) Christocentric in nature. By the eleventh century, indeed, the German emperor was being referred to as the ‘Vicar of Christ’, a title which the medieval popes were later to take over and monopolize. They succeeded in doing so, however, only after the onset of the Gregorian reform of the church in the late-eleventh century had begun to subvert the early-medieval theopolitical order (Oakley 2012). Proclaiming that ‘the age of priest-kings and emperor-pontiffs’ was over, the Gregorians moved to extrude monarchs from the ranks of the clergy and to declare the German emperor to be simply a layman and nothing more. While this revolutionary attempt to desacralize monarchy was not wholly successful, it was successful enough to open the way for subsequent attempts to subject European kings to the rule of law and eventually to secure that subjection by (constitutional) measures short of force. The more so in that the Gregorian upheaval marked the onset of what eventually amounted to a Europe-wide civil war, several centuries of intermittent but widespread struggle between the ecclesiastical and temporal authorities – tension not simply between competing ideals but between rival governmental structures, secular and religious, both of which contrived to limit each other’s effective power. It was between the hammer and the anvil of those competing authorities that Western political freedoms were eventually to be forged. Medieval constitutionalism was the product of many mutually supportive factors, by no means all of them religious in nature, but whatever the

Medieval constitutionalism  37 strength of those factors, without the Christian insertion of the critical distinction between the religious and political spheres and without the instability engendered by the clash of rival authorities, it is extremely unlikely that the Middle Ages would have bequeathed to the modern world any legacy of limited, constitutional government. Of the three principles that the editors in Chapter 1 of this Handbook identify as making manifest the limiting and enabling functions of a constitutional and legal order, the principle of the separation of powers was to emerge only in the post-medieval period, though it should be acknowledged that related notions of mixed monarchy were far from being foreign to the thinking of late-medieval political theorists. As to the emergence of the other two – the insistence on the rule of law and the role to be played by the constituent power of the governed – medieval developments may properly be said to have made a powerful contribution. The first of those principles presupposed two things. First, the degree to which the Gregorian reformers succeeded in sponsoring a desacralization of the royal office and person, and the degree to which kings came to be entangled in a network of feudal relationships of the type that had grown up in early-medieval Europe. The contractual nature of the feudal relationship between lord and vassal, the bilateral nature of the feudal contract, and the legal possession by the vassal of a ‘right of resistance’ against a faithless and arbitrary lord were significant enough. Their significance, however, was immensely enhanced if the lord in question happened to be the king. Whereas in Japan, where the emperor was, it seems, too sacred a figure to be drawn into the nexus of contractual feudal relationships, in Europe the feudal pyramid culminated, not in a mere generalissimo akin to the Japanese shogun, but in the person of the king himself. Without his involvement in the feudal hierarchy, without his assumption of the role of paramount lord, bound legally by his contractual relationship with his principal subjects, feudalism would have lacked the enduring constitutional significance which it eventually attained. However, because of that involvement, the king was now burdened with the further weight of legal obligations and restrictions that such a relationship involved: the subordination to feudal law; the rights and liberties guaranteed to his vassals (including, in the absence of specific consent to freedom from non-customary taxation); and the undermining presence of a legal right of resistance to his commands should those commands be judged illegitimate. As a result, the legacy of European feudalism was profoundly constitutionalist in nature. At the heart of that feudally mediated legacy lay insistence on subordinating the executive power to the norms of justice, civil no less than natural or divine. When in the late-eleventh century the Gregorian church reformers launched their attack on the sacral claims and priestly pretensions of the German monarchs, they did not hesitate, by appealing to those norms, to justify even the deposition of kings. Also, more than once in the course of subsequent history ecclesiastics proved willing to combine with the great feudal magnates of the realm in order to wrest from their king some sort of formal recognition of his obligation to govern with their advice and consent, and in accordance with the laws of the land. The role played by Stephen Langton, Archbishop of Canterbury, in uniting the English barons and leading their opposition to the policies of King John is only the most important of those instances; the Magna Carta, the great charter of liberties to which John appended a reluctant signature in 1215, only the best known of such end products (Holt 1992). It is easy, of course, to read far too much into the Magna Carta and much that is not there has at one time or another been read into it. There was in fact little in it that was entirely novel and much that reflected assumptions about the power of kings that were no more than Europe-wide feudal commonplaces. However, precisely because of that, the Great Charter stands as an

38  Handbook on global constitutionalism eloquent witness to the importance of the feudal contribution to the development of Western constitutionalism. To the older Christian belief that the king was responsible for the welfare of his people and, in some vague sense, accountable if he failed in that responsibility, and to the novel Christian insistence on separating the realm of the political from that of the religious, feudalism now added the precise legal conviction that the king was bound by the laws and customs of his kingdom. Admittedly, the characteristically feudal enforcement mechanism described in the last chapter of the Charter was nothing less crude than a legalized resort to arms against a recalcitrant king, and again, pride of place was given to laws and customs that protected the property rights of the baronial aristocracy. However, in the absence of explicit consent, those same rights blocked the free exercise of royal taxing powers in the absence of which no king could aspire to despotic authority. In the thirteenth and fourteenth centuries it was above all the need to obtain that explicit consent, especially from the wealthy corporate bodies that were springing up all over Europe, which led rulers to create representative assemblies. It was those assemblies, at first very much in the service of royal power, that were ultimately to provide the means whereby the theoretical legal limitations on executive power that most accepted might be enforced without resort to the armed violence that most deplored (Cam et al. 1955; Marongiu 1968; Blockmans 1998). Whereas it was the persistent tension between temporal and ecclesiastical structures of authority that helped promote the subjection of kings to law, it was, perhaps ironically, the marked degree of interaction from the twelfth century onwards between political and ecclesiological thinking, between attempts to theorize the nature of the national polity and analogous attempts to theorize the nature of the international church, that helped nudge along the development of the representative mechanisms that were to make possible the eliciting of quasi-popular consent to the policies of the executive power even in large territorial kingdoms and in the universal church itself. ‘It was assuredly no accident’, the great French historian Marc Bloch once observed, that representative institutions originated in states which were only just emerging from the feudal stage and still bore its imprint. Nor was it an accident that in Japan, where the vassal’s submission was much more unilateral and where, moreover, the divine power of the emperor remained outside the structure of vassal engagements, nothing of the kind emerged. (Bloch 1964, vol. 2, p. 452; see also Hall 1962)

We can only agree that it would be hard to imagine the emergence of such representative bodies without the prior presence of feudal arrangements of the specifically western European type. We must also insist, however, on the importance of other factors equally lacking in Japan but no less vital to the shaping of the representative procedures that lie today at the very heart of the political process in the modern, liberal-democratic and constitutionalist regimes characteristic of so many large territorial states. Central among such factors is the legacy of Roman law, greatest of the Roman intellectual achievements, the recovery during the eleventh century of the full body of that law (Corpus juris civilis, Krueger et al. 1879–81), the profound influence it came to exert on the almost contemporaneous shaping of a parallel body of equally transnational law governing matters ecclesiastical (the Corpus juris canonici), and the particular ways in which the medieval lawyers, so many of them doctors of both laws, chose to apply those parallel modes of legal thinking which became themselves so intricately intertwined that modern scholars often refer to some of their crucial principles as ‘Romano-canonical’. On the face of it, of course, there may seem to be something odd about such a suggestion. The systematization of Roman law had taken place in the sixth century CE under imperial

Medieval constitutionalism  39 rather than republican auspices. It was the work of an official legal commission charged with that task by none other than the Emperor Justinian (527–65) himself. That commission was demonstrably inclined to select or shape the ancient texts with which it was dealing in such a way as to minimize the republican memories that many of them conveyed and to maximize whatever in them was supportive of its imperial master’s autocratic proclivities. That such a body of law should in any way serve to sponsor the development of representative machinery designed to enable the eliciting of (quasi-) popular consent to royal policies would seem counter-intuitive. Certainly, the survival and cultivation of the Roman legal tradition at Byzantium had no such effect. Representative institutions were to remain as foreign to the political life of the Byzantine Empire as they had been to that of its ancient Roman forerunner. It is revealing, moreover, that when the ‘new monarchs’ of early-modern Europe were striving in their respective national kingdoms to eliminate traditional feudal obstacles to their exercise of an absolute executive power, their lawyers and propagandists were able to find much support in the texts of the Roman law, deploying on behalf of their royal masters such celebrated absolutist tags as ‘the prince is unfettered by the law’ and ‘what pleases the prince has the force of law’. In so doing, they were following in the footsteps of their late-medieval canonistic predecessors who had pursued their own legal efforts to vindicate the absolutist pretensions of their papal masters. On that matter, however, as on others, what we find in an ancient text depends very much on what we bring to it or are looking for. When the lawyers of the medieval West approached the Roman legal texts, unlike their Byzantine counterparts or many of their Renaissance successors they appear, on balance, to have been impressed less by the absolutist formulations of the late imperial period than by the republican spirit that was so often reflected side by side with those formulations. In particular, they appear to have been impressed by the principle that the political scientist Charles Howard McIlwain once described as ‘the true essence of Roman constitutionalism’, the principle that it is in the people itself that one must seek ‘the ultimate source of legal authority’ (McIlwain 1958, p. 51). The legacy of the twelfth-century civilians (experts in the Roman or civil law) passed on to later commentators turns out to have been ambivalent or bifurcated in nature. In later centuries, it remained open to development both in the direction of monarchical absolutism and in the direction of a constitutionalist emphasis on the monarch’s subordination to the law and his obligation to foster the well-being of his subjects. Something similar may be said about the legacy of the twelfth-century Decretists (those who commented on Gratian’s Decretum, the foundation stone of medieval canon law) to the canonists of the thirteenth and fourteenth centuries. Given the fallout from the upheaval engineered by the Gregorian reformers, the protracted temporal-spiritual conflict that ensued and the ecclesiological issues that came to the fore during its course, it is not surprising that one dominant theme for the Decretists should have been the elaboration of notions of papal sovereignty over the universal church. In the late-twelfth century, the Roman legal notion of sovereignty having found its way into the ecclesiastical tradition, the pope was coming to be referred to not only as ‘the ordinary judge of all’ but even, borrowing now from ancient terminology, as a ‘living law’ (lex animata) and, by virtue of having the laws within his breast (omne jus habet in pectore scrinio), as the universal church’s supreme legislator (Pennington 1988). That duly acknowledged, it should also be recognized that Decretist thought, like its civilian counterpart, was also bifurcated in nature. It responded to St Paul’s insistence that ecclesiastics

40  Handbook on global constitutionalism were given their power to build up the church, not to destroy it, and reflected also the degree to which the early texts that were incorporated in Gratian’s great work pictured the church as a community of believers participating in the decisions that affected them and in the choice of the officials who were to lead them. While conceding vast powers to the pope, therefore, the canonists were anxious to prevent the abuse of those powers and were led ‘to seek in the consensus of the whole Christian community in the indefectible Church guided by the Holy Spirit, norms of faith and order which could define the limits within which the pope’s supreme legislative and judicial powers were to be exercised’ (Tierney 1966, p. 11). Hence, their concern with the functions and powers of general councils representing the universal church and the relationship they bore to papal functions and prerogatives. Hence, too, their preoccupation with the proto-constitutionalist elements in the Roman law that linked popular consent with public authority, and, again, the creative contribution they were to make to the development of those viable representative mechanisms in the absence of which the eliciting of consent in the universal church and in large territorial kingdoms would have been impossible. By the thirteenth century, the canonists had begun to teach that the pope (acting alone) was bound by the decisions reached by pope and council (acting together) on matters concerning the faith and well-being of the church. By the fourteenth century, an increasing number of them were being led to insist that a pope guilty of heresy or of criminally endangering the overall well-being or common good of the church (status ecclesiae) could be brought to judgement by a general council acting alone and, if necessary, corrected or even deposed. Before the first two decades of the fifteenth century were over, the general council of Constance (1414–18), a great international assembly that has been compared with the Congress of Vienna and even the United Nations itself, by taking its stand on that teaching and by deposing two rival claimants to the papacy (including John XXIII whom the fathers at Constance viewed as the ‘true pope’), had succeeded finally in bringing to an end the scandal constituted by the Great Schism of the West (1378–1417). In terms of the emergence of European constitutionalism this was a supremely important development and we will return to it later (Oakley 2003). Before doing so, however, it is upon the more technical and innovative canonistic contribution to theories of representation that we must focus our attention. The need that representative assemblies initially met was the need of the ruler to secure for his policies as large a degree of public support as possible. It was a need that all rulers have felt, but one felt with particular acuteness by medieval rulers – and by popes as well as kings. The impact of feudalism, the political conditions of the day and, above all, if he really hoped to see his policies implemented, the dependence of the ruler (financial and otherwise) upon the more powerful men and more privileged (often corporate) groupings among his subjects all conspired to increase his need to maximize the degree of consent among them to his policies. How was that to be done? In a small city-state, where it was possible to assemble in one place at least the more important citizens, the problem could be solved by much the same means as those utilized by the city-states of the classical world. However, that was out of the question in larger territorial kingdoms or, for that matter, in the international church where, between the thirteenth and eighteenth centuries, hard-pressed rulers turned for such purposes to the new mechanism of the representative assembly. Representation can mean more than one thing. In particular, and simplifying considerably, it can mean either ‘personification’ – the symbolic embodiment in its ruler or its ‘natural leaders’ of the authority of the community – or it can mean the conscious and legal delegation of that authority by the community to the persons who were to represent it – make it present. It is in the latter sense of the term that the new assem-

Medieval constitutionalism  41 blies, which became prevalent all over Europe – at the provincial as well as the national and international levels – were representative (Cam et al. 1955; Marongiu 1968; Blockmans 1998). As long as the leading men of the day – the great feudal magnates in secular society and the bishops and abbots in ecclesiastical – could claim successfully to represent by personification those whom they ruled, the need for the newer institutional machinery was not felt. It was entirely feasible, for instance, for a king to assemble at his court the great barons of the realm, or the bulk thereof, or even for a pope to summon the bishops of the universal church to assemble in general council. However, as a multitude of corporate bodies began to emerge in the eleventh and twelfth centuries – cathedral chapters, international religious orders, urban communes and the like – entities whose cooperation bishops or barons could not claim to guarantee, it became necessary to seek their consent in less indirect fashion, and especially so in matters pertaining to property rights and taxation. It was in the Iberian peninsula that the first unambiguous signs of a response to that need made themselves evident when, in the Kingdom of Léon, chosen representatives of the towns were summoned to participate along with the magnates and bishops of the realm in the deliberations of the great representative assembly or cortes that was held in 1188. In the thirteenth century the same practice came to be followed in some at least of the cortes assembled in the kingdoms of Castile, Aragon, Catalonia and Valencia. In that and subsequent centuries comparable representative assemblies came into existence across Europe, from Sweden in the north to Sicily in the south, and from Portugal, England and France in the west to Poland, Bohemia and Hungary in the east. It was in the context of these new ‘parliamentary’ developments that the civilians and canonists contrived to make their contributions. The former did so largely by a direct evocation of the Roman public law, the latter by a creative manipulation and development of Roman private law – notably of certain elements embedded in the law of corporations (Marongiu 1946, 1962; Congar 1958; Post 1964; Tierney 1982). As far as public law was concerned, and as far as it touched upon the sovereignty of emperors and the putatively ‘popular’ derivation of their authority, the legacy of the revived Roman law and of its canonistic counterpart, far from serving solely to buttress the claims of those attributing to the ruler’s power of an absolute nature, was, as we have already suggested, ambivalent in nature. Coping as they had to in the twelfth and thirteenth centuries with a mounting tide of litigation involving monastic and cathedral chapters, collegiate churches and other ecclesiastical corporations, the canonists had necessarily had to grapple with the means whereby such corporate bodies could have their say in court. Similarly, given the increasing financial pressures ecclesiastical superiors were having to impose on those corporate bodies, some way had to be found to afford the latter a measure of ‘due process’. In their effort to solve such problems the canonists were led to explain ‘the collegial structure of the church in terms of the Roman law of corporations’ just as they had previously explained ‘the doctrine of papal leadership [in the church] in terms of the Roman law of sovereignty’ (Tierney 1982, p. 19). A corporation (universitas) is an association which the law recognizes as being constituted of one or more persons, as possessing various rights and duties, and as being capable of acting as a single (if fictive) person in matters legal. Corporate bodies of one sort or another had proliferated in the Roman world, and the Romans had developed a sophisticated body of law to regulate their activities. However, the doctrine of agency they had developed to make possible the delegation of authority by corporate principal to an agent charged with the task of representing that principal in negotiations with a third party was defective. All that delegation did was to establish an obligation between the third party and the agent, not directly with the

42  Handbook on global constitutionalism principal. In the late twelfth century, however, the canonists perfected the doctrine of agency in such a way that a corporation acting as a principal and by decision of the greater (or ‘greater and wiser’ part of its members (Congar 1958; Moulin 1958; Post 1964; Tierney 1982) could delegate to a proctor or attorney whom they needed to represent them in court what we today would call ‘powers of attorney’, that is, full and sufficient power (plena et sufficiens potestas) to see through to definitive conclusion the business at hand. This was done in such a way that the corporate body involved (the principal) would be legally obligated to honour the commitments which its legal representative had undertaken on its behalf (Post 1964). Where routine corporate litigation was involved, these highly technical procedural moves did not extend beyond private law. Nonetheless, they were to prove full of promise for developments taking place in the constitutional arena. There the great creative turning point came when those same canonists were moved to take a further and less obvious step. They did so when they began to treat the universal church, and the general council representing it, as corporate entities in a quite technical fashion (Tierney 1982). As a result, they were led to extend the now-established mechanism of representation by explicit legal delegation from the restricted realm of private law to the broader public constitutional sphere. By so doing, they were fashioning viable mechanisms whereby such corporate bodies as cathedral chapters or religious orders could be summoned to send to provincial or general councils of the church proctors (attorneys) or representatives possessed of legally delegated authority to give their advice and consent to policy changes or taxation initiatives that touched the interests of their ‘constituents’. Thus, as early as 1215, Pope Innocent III summoned from every part of Europe proctors possessed of plena et sufficiens potestas to represent convents and cathedral chapters at the Fourth Lateran Council, one of the most important of medieval general councils. In effect, these representatives were plenipotentiaries whose decisions were legally binding upon their ‘constituents’. Not long after that, practices of a similar kind began to make their appearance in the national monarchies of Europe, with the ‘community of the realm’ being envisaged as a great corporation united in pursuit of common ends and capable of representation by delegates possessed not of limited mandates but of the same full and sufficient power to deal with the matter at hand in a manner that would bind their constituents to the consent given on their behalf. These the rulers summoned from the towns, communes and (in England) shires for the purposes of seeking their counsel, support and agreement in connection with the arduous governmental tasks confronting them and the financial burdens attendant upon their policies. During the course of the two centuries ensuing, and as representative assemblies of one sort or another (provincial as well as national) made their appearance all over Europe, national monarchs and territorial princes became accustomed to making use of the Romano-canonical principles and procedures we have been discussing. Embarking, as they were, on increasingly vigorous and ambitious governmental activities whose success depended upon the cooperation of their subjects, they needed more than ever to obtain from those subjects and for the mounting taxation needed to finance their efforts the consent of governed, the consent, that is, not only of the baronage but also of the increasingly powerful corporate and propertied groups in the land. In the thirteenth century, however (though this was later to change), the type of consent involved was not such that it could be called ‘political’, let alone ‘democratic’ – the type of consent that expresses the sovereign will of the people and implies some sort of limit on the reach of the ruler’s prerogatives. True instead to its roots in private law and the specifications of legal due process, and especially so at the outset, that form of consent remained very much consultative and procedural in nature. Thus, the governmental case for the necessity of the

Medieval constitutionalism  43 proposed action was discussed and, as it were, ‘tried’ in the assembly. What was involved was in many ways akin to the process that occurs today when the state, in preparation for example for the construction of a highway, exercises the legal right to take by eminent domain pieces of property that lie athwart the proposed highway corridor. The action involved pertained rather to the matter of legality rather than that of political legitimacy. Behind the appeal to the Romano-canonical maxim Quod omnes tangit, often cited in writs of summons to representative assemblies, lay an essentially traditional commitment to the view that all whose rights were touched by an issue should have every opportunity to prepare the defence of their rights, to take advantage of all means within the law and to consent to the court’s decision on the legality of the rights only after a full defence…discussion and debates had taken place. (Post 1964, p. 180)

The consent to the decision itself, however, was in effect compulsory. Similarly, behind the persistent effort by rulers to insist that representatives to parliamentary-style assemblies should come, not with limited mandates from the constituents whose rights were being touched, but with ‘full and sufficient power’ lay the long-standing need of the court to ensure that the agent or attorney (that is, representative) had the requisite power to conclude the business at hand in such a way that his conclusion or consent would automatically enjoy the legally binding concurrence of his principal (that is, constituents). So much was this the case with early representative assemblies that they functioned less as an instrument of constitutional restraint on executive power than as a tool of government, a means whereby the ruler could more easily achieve his goal. Hence, one modern i­nvestigator of the English medieval parliament was moved to coin the felicitous description: ‘Self government at the king’s command.’ Given the growing prevalence of representative assemblies, however, the accumulation across time of experience on the part of the representatives, and the fluctuations in strength between rulers and the communities from which they were demanding consent, it is readily comprehensible that by the end of the fourteenth century representative procedures should have begun to function less exclusively in the interest of the ruler. They had come to involve, instead, attempts on the part of representatives to control not simply the granting of taxes but also the way in which those taxes were to be expended, as well as efforts to interfere in the choice of those who were to function as ministers and advisers to the ruler. In effect, consent of a procedural-consultative nature was now deepening into consent that was genuinely political and sovereign. At one time or another in the later Middle Ages most representative assemblies were able to make their weight felt in a whole range of governmental activities, especially in the legislative process. Also, the English parliament, old insular claims to the contrary, was far from being alone in using the power of the purse, its control of taxation, to impose constitutional constraints in order to limit the ruler’s freedom of action. By the fifteenth century, the cortes of Aragon had become notably successful in its efforts to do precisely that. I have already suggested that it was the instrumentalities of representation that were eventually to provide the means whereby the theoretical subjection of the executive power to the rule of law could be enforced without recourse to armed violence. However, it cannot be claimed that this happy outcome was really achieved on a stable and continuing basis during the Middle Ages. The meetings of medieval representative assemblies were too intermittent, the restraints they were able to impose too dependent on special circumstances. By the sixteenth and seventeenth centuries, moreover, the age of their grandeur was over. Almost everywhere in Europe the power of the prince was in the ascendant, monarchical absolutism was coming to be regarded

44  Handbook on global constitutionalism as the ‘modern’, fashionable thing, the most civilized governmental form, and the constitutional theories and practices inherited from the medieval past were now being dismissed as archaic hindrances to the achievement of efficient government. It is in part because of such developments that a particular importance attaches to the great international general councils of the Latin Church that were assembled during the course of the fifteenth century. More dramatically than any other, those representative assemblies exemplified in practice medieval constitutionalist aspirations. A similar importance attaches to the Conciliar theorists who so influenced the work of those councils, and in whose writings those aspirations found their clearest, most explicit and most notable expression. As John Neville Figgis put it, the Conciliar theorists ‘raised the constitutionalism of the past three centuries to a higher power, expressed it in more universal form, and justified it on the grounds of reason, policy and Scripture’ (Figgis 1960, p. 48). As a result, in the sixteenth and seventeenth centuries, in England as well as in Scotland and France, long after the Conciliarist programme of transforming the papal monarchy into a constitutionalist regime had ceased to be a viable possibility, and at a time when national constitutionalist traditions had fallen into decay or were teetering on the brink of desuetude, Conciliarist ideas still retained the power to fuel the arguments and strengthen the resolution of hard-pressed constitutionalists or advocates of resistance to tyranny, Protestant no less than Catholic. Thus, in the Vindiciae contra tyrannos, the most celebrated and influential piece of constitutionalist literature spawned in the late sixteenth century by the French Religious Wars, its anonymous Protestant author argued that if it is demonstrated by the reasoning of almost all the doctors, and by the decrees of councils – and by their very actions – that a council may by right depose…a pope who, for all that, boasts himself to be king of kings, and blazons that claim that he is superior to the emperor as the sun is to the moon, and who even arrogates to himself the authority to discharge kings and emperors at will, who then can still doubt that the public council of any kingdom may depose and discharge not only a tyrant, but a king who is ruinous to the kingdom on account of his madness. (Brutus 1579 [2003], p. 164)

REFERENCES Bloch, M. (1964), Feudal Society, 2 vols, trans. H.H. Manyan, Chicago, IL: University of Chicago Press. Blockmans, W. (1998), ‘Representation (since the thirteenth century)’, in C. Allmand (ed.), The New Cambridge Medieval History, vol. 7, Cambridge: Cambridge University Press, pp. 29–64. Brutus, S.J. (1579), Vindicae contra tyrannos (Defences against Tyrants), trans. G. Garnett (ed.) (2003), Cambridge: Cambridge University Press. Cam, H.M., A. Marongiu and G. Stöckl (1955), ‘Recent work and present views on the origin and development of representative assemblies’, in H.M. Cam, A. Marongiu and G. Stöckl (eds), Relazioni del X Congresso Internazionale di Scienze Storiche, 6 vols, Rome, pp. 1–101. Cerfaux, L. and J. Tondriau (1957), Un concurrent du Christianisme: La culte des souverains dans la civilisation Gréco-Romain (A Competitor of Christianity: The Cult of Rulers in Graeco-Roman Civilization), Tournai: Desclée. Congar, Y.M.J. (1958), ‘Quod omnes tangit ab omnibus tractari et approbari debet’ (‘What touches all by all should be deliberated upon and approved’), Revue d’histoire de droit français et étranger, 36, 210–59. Figgis, J.N. (1960), Political Thought from Gerson to Grotius, 1414–1625: Seven Studies, New York: Harper Torchbooks. Gilbert, M. (1987), ‘The person of the king: ritual and power in a Ghanaian state’, in D. Cannadine and S. Price (eds), Ritual and Royalty: Power and Ceremonial in Traditional Societies, Cambridge: Cambridge University Press, pp. 299–330.

Medieval constitutionalism  45 Hall, J.W. (1962), ‘Feudalism in Japan: a reassessment’, Comparative Studies in Society and History, 5 (1), 15–51. Hamilton, A., J. Madison and J. Jay (1788), The Federalist Papers, reprinted I. Shapiro (ed.) (2009), New Haven, CT: Yale University Press. Holt, J.C. (1992), Magna Carta, 2nd edn, Cambridge: Cambridge University Press. Krueger, P., T. Mommsen and R. Schoell (eds) (1879–81), Corpus Juris Civilis (The Body of Civil Law), 3 vols, Berlin: Weidman. Marongiu, A. (1946), ‘Il principio fondamentale della democrazia nell XIII secolo’ (‘The fundamental principle of democracy in the 13th century’), Paideia, 1 (5), 257–62. Marongiu, A. (1962), ‘Il principio della democrazia e del consenso nel XIV secolo’ (‘The principle of democracy and consent in the 14th century’), Studia Gratiana, 8, 555–75. Marongiu, A. (1968), Medieval Parliaments: A Comparative Study, trans. S.J. Woolf, London: Eyre and Spottiswoode. McIlwain, C.H. (1958), Constitutionalism: Ancient and Modern, Ithaca, NY: Cornell University Press. Moulin, L. (1958), ‘Sanior et major pars: Notes sur l’évolution des techniques électorales dans les ordres religienses’ (‘The greater and wiser part: notes on electoral techniques in the religious orders’), Revue historique de droit français et étranger, 4th series, 36, 391–530. Oakley, F. (2003), The Conciliarist Tradition: Constitutionalism in the Catholic Church, 1300–1870, Oxford: Oxford University Press. Oakley, F. (2006), Kingship: The Politics of Enchantment, Oxford: Blackwell. Oakley, F. (2010), Empty Bottles of Gentilism: Kingship and the Divine in Late Antiquity and the Early Middle Ages (to 1050), New Haven, CT: Yale University Press. Oakley, F. (2012), The Mortgage of the Past: Reshaping the Ancient Political Inheritance (1050–1300), New Haven, CT: Yale University Press. Pennington, K. (1988), ‘Law, legislation, authority, and theories of government, 1150–1300’, in J.H. Burns (ed.), The Cambridge History of Medieval Political Thoughts, Cambridge: Cambridge University Press, pp. 424–53. Post, G. (1964), Studies in Medieval Legal Thought: Political Law and the State, 1100–1322, Princeton, NJ: Princeton University Press. Tierney, B. (1966), ‘Medieval canon law and western constitutionalism,’ Catholic Historical Review, 52 (1), 1–17. Tierney, B. (1982), Religion, Law, and the Growth of Constitutional Thought, Cambridge: Cambridge University Press.

4. Global constitutionalism in the early modern period: the role of empires, treaties and natural law Martine van Ittersum

INTRODUCTION Written treaties have become sacrosanct in modern international law. Printed volumes filled with agreements between sovereign rulers and/or states have rolled from the presses in Western Europe since the seventeenth century. Textbooks on international law inform us that it was the rise of positivism in the nineteenth century – a strong preference for treaties and international conventions as sources of law – which signalled the birth of modern international law. Indeed, the entire edifice of world courts that has come into existence in the twentieth and twenty-first centuries – the Permanent Court of Arbitration, the International Court of Justice, the International Criminal Court, and so on – rests on written agreements between states. The same applies, of course, to the establishment of the League of Nations (1920) and the United Nations (UN) (1945) and their subsidiaries (Shaw 1995, pp. 21–100; Lesaffer 2012; for a very different account of the origins of modern international law see Koskenniemi 2001, 2012; Anghie 2005). No wonder, then, that when the UN adopted the ‘Declaration on the Rights of Indigenous Peoples’ in 2007, it included a clause affirming the right of native peoples ‘to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements’ (United Nations 2007, art. 37). Indigenous activists and their white supporters pushed for the inclusion of this clause in the UN Declaration. They have long embraced intercultural dialogue and treaty-making as the way forward. This chapter offers a critique of the recent fetishism of treaties, particularly the lazy and mistaken assumption that treaties are ironclad guarantees for indigenous rights. It explores the relationship between European expansion overseas, treaty-making and natural law in the early modern period, focusing in particular on the Dutch jurist Hugo Grotius (1583–1645). The man hailed in the twentieth century as ‘father of international law’ was known in his own time for his steadfast support of the Dutch East India Company or VOC (Verenigde Oostindische Compagnie). His understanding of natural law, particularly the notion of pacta sunt servanda (treaties must be performed), cannot be separated from his justification of Dutch empire-building in the East Indies. There was nothing equal about the VOC’s treaty relationship with the inhabitants of the Spice Islands (that is, the present-day Maluku Islands in Indonesia). Grotius knew this. Indeed, he vigorously defended these unequal treaties in his De Indiis (On the Indies) – written 1604–08 but only published in the nineteenth century as De Jure Praedae (On the Law of Prize and Booty) (Grotius 2006) – and, of course, in his De Jure Belli ac Pacis (On the Law of War and Peace), first published in 1625 and 46

Global constitutionalism in the early modern period  47 reprinted many times afterwards (Grotius 2005). The VOC and the native inhabitants of the Spice Islands were bound together in a protection/tribute exchange. The VOC’s role was to shield the islanders from foreign invasions, particularly attacks by the, allegedly, ‘tyrannical’ Spanish and Portuguese. In return, the islanders were obliged to sell all their produce to the VOC – in perpetuity and for a fixed price determined by the VOC. Crucially, it was up to the VOC to monitor indigenous performance of the treaties. If it deemed the natives deficient in any way, it could punish them as transgressors of the natural law, waging a ‘just war’ against them. By these means, the VOC became, first, co-ruler in the Spice Islands, and, subsequently, a full-fledged sovereign (Wilson 2008; Borschberg 2010, 2011). For similar developments in the case of the English East India Company, see Stern (2012) and Stern and Wennerlind (2014). The history of treaty-making, then, is closely connected with that of Western imperialism and colonialism. It is certainly no panacea for the protection of indigenous rights. James Tully, who served on the Canadian Royal Commission on Aboriginal Peoples from 1991 until 1995, is far more positive about the role (to be) played by treaties in relations between the aboriginal and non-aboriginal peoples of Canada. In the next section, we examine both Tully’s pronouncements on treaty-making in his magisterial Public Philosophy in a New Key (2008) and recent contributions to the debate by historians. The role which written documents have played in European relations with native peoples since 1500 is the focus of two essay volumes edited by the historian Saliha Belmessous: Native Claims: Indigenous Law against Empire, 1500–1920 (2012) and Empire by Treaty: Negotiating European Expansion, 1600­–1900 (2015). Not surprisingly, the contributors disagree about the question whether, and to what extent, aboriginal peoples were able to ‘negotiate’ or ‘resist’ empire. The third section provides a short overview of the eventful life and career of Hugo Grotius, while the subsequent section focuses on his justification of Dutch expansion overseas. There is a clear connection with his conceptualization of the Dutch Revolt against Philip II of Spain and Portugal. In cases of divided sovereignty, so Grotius argued, the entities acting as co-rulers – be they the States of Holland or the VOC – were entitled to punish transgressors of the natural law – be they Philip II of Spain and Portugal or the VOC’s native allies – and to wage a ‘just war’ against them. By these means, co-rulers could acquire all the ‘marks of sovereignty’, resulting in Dutch independence in Europe and the establishment of a colonial empire overseas. The fifth section presents a case study: the role of treaties in the violent Dutch conquest of the Banda Islands between 1609 and 1621. I argue that, in the European encounter with ‘the other’, treaty-making should not be seen as an alternative to conquest and war, but as integral to the process of ‘dispossessing the native’. This has important implications for our understanding of modern-day global constitutionalism, which functions as an extension of international law and which relies upon textual guarantees in its support of the rule of law. Significantly, there has been little engagement with indigenous rights in the secondary literature on global ­constitutionalism – with the notable exception, that is, of a recent editorial in the eponymous journal. Critiquing the current state of the field of global law and governance, the editors of Global Constitutionalism point out that ‘indigenous peoples have been dispossessed of and removed from their life ways and ecosystems in which Homo sapiens co-evolved for 150,000 years in the name of development and progress’, and argue for the alternative paradigm of ‘eco-social constitutionalisation’, which includes ‘learning from and with indigenous peoples and their earth ways’ (Tully et al. 2016, pp. 9, 12). However well-­intentioned, this conceptualization threatens to resurrect the hoary dichotomy of the Roussean ‘noble savage’ living in harmony with nature versus the

48  Handbook on global constitutionalism depraved, yet simultaneously ‘civilized’, city dweller (Pagden 1982, 1994). It is a well-known, and misleading, trope in Western culture, which tells us nothing about day-to-day interactions between indigenous communities and, for example, transnational corporations (TNCs), or about the various strategies adopted by TNCs to either persuade or force these communities to comply with their demands. Nor is it unprecedented for TNCs to operate as ‘shadow sovereigns’ (Tully et al. 2016, p. 7). In the days of Grotius, both the Dutch and English East India companies operated as corporations alongside – and often in competition with – the two corporate bodies known as the Dutch and English states (Stern 2011; see also Pettigrew 2015). Paramount state sovereignty, either as a reality or as a norm in international law, is a recent phenomenon. Sadly, it has not worked for many native peoples in their power struggles with TNCs. We may want to find out why that is. Could it be that the written culture that is so crucial for the functioning of modern states and modern corporations puts native peoples at a disadvantage?

INDIGENOUS PEOPLES AND TREATY-MAKING In Public Philosophy in a New Key, James Tully boldly re-conceptualizes relations between the First Nations and other inhabitants of Canada on the basis of five fundamental principles: ‘mutual recognition, intercultural negotiation, mutual respect, sharing and mutual responsibility’ (Tully 2008, p. 229). He assigns an important role to treaty-making in the process of reconciliation between the aboriginal and non-aboriginal peoples of Canada: Specific types of relations are agreed to, written down as treaties, put into practice, reviewed and renewed. It is not a once-and-for-all agreement, as in social contract theories, nor an accord frozen in a constitutional document. It is a conversation between the members of Aboriginal and non-Aboriginal cultures in all walks of life over the time they live together and share the land. (Tully 2008, p. 239)

He makes a point of explicitly rejecting a world view which justified the colonial relationship in the nineteenth and twentieth centuries. The so-called ‘stages’ theory of history ranked Europeans at the top – as, supposedly, bearers of civilization – and consigned aboriginal peoples to the most primitive stage, as, allegedly, living in a state of nature, totally devoid of government or territorial rights. This understanding of European–native relations has not survived the collapse of European empires after the Second World War. As Tully notes, aboriginal peoples around the world demand that the process of decolonialization be extended to them as well (Tully 2008, pp. 227–8). Tully urges both the First Nations and other inhabitants of Canada to recognize each other as ‘equal peoples who govern themselves and their lands by their own laws and cultures’. He claims to take his cue from early modern treaty-making, a period of time when, allegedly, Europeans and natives were evenly matched and treated each other as equals. He realizes that the treaty system has suffered from constant abuse. He nevertheless values what he considers the original intentions behind early-modern treaty-making, namely, to settle differences ‘by means of discussion and consent, without interfering in the internal government of either society’ (Tully 2008, p. 226; see also Economist, 2015). Unfortunately, few historians of European overseas expansion will recognize Tully’s reconstruction of events. Prior to 1800, European explorers, traders, settlers and colonial officials did not exactly embrace the principles of equality and non-interference, either in their own

Global constitutionalism in the early modern period  49 societies or in their dealings with aboriginal peoples. It is a moot point whether Tully’s belief in an idealized past will prove an aid or a hindrance to his efforts to improve the lot of the First Nations. Historians have entered the debate about treaty-making past and present through the work of Saliha Belmessous, editor of Native Claims: Indigenous Law against Empire, 1500–1920 and Empire by Treaty: Negotiating European Expansion, 1600–1900 (Belmessous 2012, 2015). The two essay volumes raise the important question of whether treaties between Europeans and indigenous populations around the world can be read as alternatives to conquest and war, and, possibly, as the means by which indigenous peoples have sought to turn the tide of Western imperialism and colonialism. Belmessous notes in her introduction to Empire by Treaty that ‘today great expectations are placed on treaties for the resolution of conflicts over indigenous rights in postcolonial settler societies’ (Belmessous 2015, p. 15). In his concluding remarks, Paul Patton goes so far as to argue that the treaty relationship reflects a desire ‘on all sides’ to legitimize settler sovereignty ‘by reference to the consent, however belated or hypothetical, of … indigenous peoples’ (Belmessous 2015, p. 268). Not all contributors to Empire by Treaty are so sanguine about the ability of native peoples to negotiate or resist empire. In her essay chapter on territorial conflict and alliance-making in pre-1800 South America, Tamar Herzog convincingly shows that treaties were ‘instruments of containment’ aimed at realizing ‘ – to the degree that this was possible – the subjection of all things indigenous’ (Herzog 2015, pp. 78–9). Dane Kennedy points out in his H-net review of Empire by Treaty that the history of treaty-making raises serious concerns about the legitimacy of settler sovereignty, since ‘indigenous consent was often coerced’ (Kennedy 2015). The issue of meaningful consent is, indeed, a crucial one.

THE LIFE AND TIMES OF HUGO GROTIUS Before we turn to Grotius’ justification of Dutch expansion overseas and its relation to the importance of treaty-making, a short overview of his eventful life and career is in order. The connections Grotius made between the struggle for Dutch independence and the creation of a colonial empire overseas cannot be divorced from his own political career in Holland in the 1600s and 1610s. Grotius was born into a prominent regent (that is, patrician) family in Delft on Easter Day 1583. Just two years earlier, the Dutch States General had abjured Philip II of Spain and Portugal as the ruler of the Low Countries and created a new state, the Dutch Republic. Grotius started his professional life as a private solicitor, at the tender age of 16. In 1604, the VOC directors asked him to write a defence of the company’s privateering campaign in Asian waters, particularly its aggressive attacks on Portuguese ships and fortresses. Grotius was happy to oblige, and completed his De Indiis in 1607–08. This treatise of 163 folios remained in manuscript for another two-and-a-half centuries. At the directors’ request, Grotius did publish chapter 12 of De Indiis separately in 1609 as Mare Liberum/The Free Sea or ‘The Right Which the Hollanders Ought to Have to the Indian Trade’. He continued to support the VOC in word and deed for the rest of his life, negotiating on the company’s behalf with the English East India Company (EIC) in 1613 and 1615, for example (Grotius 2004, 2006; van Ittersum 2006; Nellen 2015, pp. 1–164).

50  Handbook on global constitutionalism Thanks to the patronage of Johan van Oldenbarnevelt, de facto political leader of the Dutch Republic and a friend of Grotius’ father, he was quickly appointed to a number of high-level political positions at the provincial and federal level. He became Advocate-Fiscal (that is, public prosecutor) of Holland in December 1607 and Pensionary (that is chief legal adviser) of the town of Rotterdam in June 1613. In the latter capacity, Grotius joined the Rotterdam delegation in the States of Holland. In May 1617, he became a member of the Holland delegation in the Dutch States General, the federal government of the Dutch Republic. By all accounts, it was a meteoric political career. Grotius would undoubtedly have succeeded Oldenbarnevelt as political leader of the Dutch Republic, had it not been for religious troubles that brought the rebel state to the brink of collapse during the Twelve Years Truce (1609–21). Orthodox Calvinists squared off against the so-called ‘Remonstrants’, followers of the Leiden theologian Arminius. Although Arminius’s followers were a minority in the Dutch Reformed Church, they enjoyed the support of the States of Holland, in particular of Oldenbarnevelt and Grotius. The theological bickering developed into a major political crisis that endangered the existence of the Dutch Republic. Prince Maurice of Orange, commander-in-chief of the country’s naval and military forces and Stadtholder (that is, governor) of six of its seven provinces, could not stand idly by. In August 1618, he sought to break the political deadlock by means of a regime change, which landed Grotius in prison for almost three years. In view of his close association with Oldenbarnevelt – executed in May 1619 – he was lucky to escape with his life (Tex 1973; Nellen and Trapman 1996; Nellen 2015, pp. 165–293). Yet Grotius’ political career was far from over. In March 1621, he escaped from Loevestein Castle in a book trunk. He headed south to Paris, where he lived as an exile for many years and received a pension from the French Crown. As a quid pro quo, he dedicated De Jure Belli ac Pacis (1625) to Louis XIII of France. Cardinal Richelieu was eager to tap Grotius’ in-depth knowledge of Dutch overseas expansion and commercial governance, and sought to involve him in the establishment of a French East India Company. Yet Grotius was unwilling to burn his bridges behind him. For a long time he believed that he would be reinstated as Pensionary of Rotterdam once Prince Maurice’s younger brother and heir, Prince Frederic Henry, had established himself in power. Grotius returned to Holland in October 1631 in order to force a breakthrough in the negotiations about his possible rehabilitation. His ostentatious visits to Rotterdam and Amsterdam badly backfired, however. In April 1632, the States of Holland exiled him once more and put a price of 2,000 guilders on his head. The definitive breach with his homeland came after two unhappy years in Hamburg. Grotius accepted the offer of the Swedish chancellor Axel Oxenstierna to become the resident Swedish ambassador in Paris. In the context of the Thirty Years War this was an important and sensitive position; after the death of King Gustavus Adolphus, the Swedish armies in Germany were essentially kept afloat by French subsidies. It was Grotius’ job to maintain good relations with the French ally, particularly Cardinal Richelieu. He discharged this task for nearly ten years, albeit with uneven success, owing to French opposition to his appointment. He was finally recalled by the Swedish government in January 1645 and arrived in Stockholm five months later. He refused to become one of Queen Christina’s privy counsellors, however, and took the first ship back to France. After a storm-ridden voyage across the Baltic, his ship was wrecked off the Pomeranian coast in August 1645. Although Grotius safely reached the shore, he died at an inn in Rostock, aged 62. He was buried in the family crypt in the New Church in Delft (Nellen 2015, pp. 293–763; van Ittersum 2010).

Global constitutionalism in the early modern period  51

HUGO GROTIUS AND TREATY-MAKING Grotius vigorously defended Dutch expansion overseas in several publications, including De Jure Belli ac Pacis, and in memoranda written for the VOC directors, the States of Holland and Dutch States General. His understanding of natural law, particularly the notion of pacta sunt servanda (treaties must be performed), was crucial in this respect. The VOC engaged in a protection/tribute exchange with its native allies, thus inserting itself as a co-ruler in, for example, the Spice Islands (Grotius 2005, 2006; van Ittersum, 2006; Clulow 2009; Benton and Clulow 2015). Both Grotius and the VOC directors presented this arrangement as a war of liberation, pitting the VOC and its native allies against the ‘tyrannical’ Spanish and Portuguese. As Grotius put it in De Jure Praedae: ‘The Dutch sailor knows that he is fighting in defence of the law of nations while his foes are fighting against the fellowship of mankind; he knows that they fight to establish despotism, but that he himself is defending his own liberty and the liberty of others’ (Grotius 2006, p. 483). Under natural law, so Grotius argued, the VOC was allowed to act as judge and executioner in its own cause. This went beyond self-defence. Both on the high seas and in Asian territories, the VOC was entitled to punish any transgressor of the natural law. In the first instance, the VOC went after European competitors, particularly the subjects of the King of Spain and Portugal, who, allegedly, showed little respect for the freedom of trade and navigation mandated by natural law. Not coincidentally, the Dutch Republic was fighting a war of independence against the same ruler. Yet natural law was equally applicable to the company’s native allies – or so Grotius and the VOC directors thought. If native allies did not keep their side of the bargain – by sabotaging the company’s efforts to monopolize the spice trade, for example – they were liable to punishment by the VOC in a ‘just war’. A case in point is the company’s violent subjugation of the Banda Islands, a group of tiny islands west of New Guinea. On various occasions, the Bandanese sought to sell nutmeg and mace to Asian merchants and the English East India Company, in spite of treaties to the contrary concluded with the VOC. Grotius wholly endorsed the company’s efforts to punish Bandanese ‘rebels’, resulting in the archipelago’s subjection to Dutch rule by 1621 (van Ittersum 2006, pp. 359–483; Weststeijn 2014). It is important to realize that Grotius’ understanding of the situation in the Banda Islands was not very different from the way he conceptualized the Dutch Revolt against Philip II of Spain and Portugal. For Grotius, divided sovereignty was the norm, both in Asia and Europe. He saw clear parallels between the way the VOC acted as co-ruler in the Banda Islands and the way the States of Holland became fully sovereign and independent as a result of its ‘just war’ against Philip II of Spain and Portugal. Allegedly, the Habsburg ruler and his representatives in the Low Countries had exceeded their constitutional powers by imposing taxes without the consent of the Dutch States General and the various provincial assemblies. The States of Holland and other provincial assemblies were justified in their decision to take up arms against Philip II, acquiring all the marks of sovereignty in the process. In this train of thought, it was the States of Holland that, acting in its capacity as co-ruler, punished Philip II for his failure to respect the (unwritten) Dutch constitution and for breaking his contractual relationship with his Dutch subjects. Similarly, the VOC took up arms in the Banda Islands in order to ensure (what it considered to be) the proper performance of contracts, becoming the islands’ sole ruler in the process (Borschberg 1994, 2011, pp. 78–105; Van Ittersum 2016; Waszink 2020).

52  Handbook on global constitutionalism

A CASE STUDY OF TREATY-MAKING AND ARMED CONFLICT IN THE BANDA ISLANDS, 1609–211 Located 2,000 kilometres east of Java, the Banda Islands – a group of seven small islands, including one volcano, the Gunung Api – are now a forgotten backwater in the Republic of Indonesia. It used to be very different. For centuries, the islands were part of an Asian trading network connecting the island of Java with the Philippines and the South China Sea. Merchants from ports on Java’s north coast visited on a regular basis, exchanging rice from Java and textiles from the Indian subcontinent for nutmeg and mace. They brought Islam as well. As elsewhere in Southeast Asia, state development was slow in the Banda Islands. Confederations of villages competed with each other, primarily ulilima (a group of five villages) and ulisiva (a group of nine villages). Orangkayas (aristocrats, generally with wealth from trade) met on the island of Nera in order to reduce conflict between villages and negotiate trade deals. Although the Bandanese successfully played off Javanese merchants against each other, they had become dependent on the spice trade for their livelihoods. Not much was left of the islands’ original subsistence economy by the time the first Europeans arrived in the sixteenth century (Gupta 1987; Reid 1988, vol. 1, pp. 11–13, 90–96, vol. 2, pp. 1–61, 114–73; Knaap 2004). Nutmeg, mace and cloves had reached Europe via ports in the Middle East during the Middle Ages. One of the aims of European expansion into Asia was to cut out Muslim middlemen and establish direct trade links with the Spice Islands. The Portuguese were the first to reach the Banda Islands. However, they were not able to establish a military presence there, in sharp contrast with the Moluccas and Ambon, where they built and garrisoned fortresses. Nor did the Portuguese obtain any special trading privileges in the Banda Islands, trading on the same footing as Javanese merchants (Vlekke 1944, pp. 68–90; Villiers 1981). The situation in the Banda Islands changed completely when the VOC appeared on the scene. Swift Dutch penetration of Southeast Asia went hand-in-hand with naked aggression against both Portuguese and indigenous shipping. The voyage of Pieter Willemszoon Verhoef (1573–1609) – the VOC’s so-called Fourth Voyage (1607–12) – was crucial in tipping the balance of power in the Banda Islands. For the first time, the Bandanese had to accept a European military presence in their country. Dutch fortresses were established on Nera in 1609, on Pulo Way in 1616 and on Great Banda (also known as Lonthor) in 1621. Yet indigenous inhabitants had no intention of surrendering without a fight, and took up arms against the VOC. A complex situation was complicated even further by the presence of merchants and mariners employed by the EIC, eager to secure their own trading interests (Foster 1933; Masselman 1963; Chaudhuri 1965; Keay 1993; Loth 1995a; Milton 1999; Knaap and Teitler 2002; Locher-Scholten and Rietbergen 2004). By establishing fortresses in Asia, the VOC sought to tighten up the protection/tribute exchange with its native allies and strengthen its position as a co-ruler in these territories. The Bandanese saw things differently, of course. As Adam Clulow notes, the orangkayas ‘had long been accustomed to finding security by playing off foreign powers’ (Clulow 2016, p. 30). Until Verhoef’s arrival in the archipelago, they had treated the VOC as simply one more merchant bidding for their produce. If and when the VOC failed to supply the trade goods

1



For a fuller account, see van Ittersum (2016).

Global constitutionalism in the early modern period  53 they required, such as textiles and rice, they had been at liberty to sell their nutmeg and mace to somebody else, and frequently did. Verhoef was determined to change that. His murder in May 1609 suggests that many Bandanese objected to a close military alliance with the VOC, and were desperate to avoid the construction of a Dutch fortress. Did they suspect that, ultimately, it would result in a complete loss of indigenous sovereignty (Purchas 1905–07, vol. 2, pp. 534–9; van Opstall 1972, pp. 94–105, 267–9)? Thanks to the presence of William Keeling (1577/78–1620) in the Banda Islands in spring 1609, followed by visits of other EIC merchants and commanders, native opponents of the VOC were confident that they could play off the English against the Dutch and thus regain control of the situation. The Bandanese suffered from internal divisions, however. According to the Dutch Governor-General Laurens Reael (1583–1637), they governed themselves ‘entirely in a democratic fashion [populariter], like a republic’ (van Opstall 1979, p. 197) – not exactly a compliment in the seventeenth century. It may explain why they dismissed Keeling’s suggestion to surrender their sovereignty to the King of England. Only in April 1616, when VOC commander Jan Dirckszoon Lam (d. 1626) was about to launch an all-out assault, did the inhabitants of Pulo Way enact a ceremony formally acknowledging James I of England as their protector. It failed to stop Lam’s conquest of the island, but it did create a very useful precedent for the EIC. Eight months later, Nathaniel Courthope had little difficulty persuading inhabitants of Pulu Run – many of whom were refugees from Pulo Way – to repeat the ceremony and sign a treaty with him (Foster 1905, pp. 328–9, 1933, pp. 261–7; Stapel 1939, vol. 3, p. 99; Loth 1995a, pp. 713–14; van Goor 2015, p. 281). Meanwhile, VOC officials continued to sign contracts with the Bandanese as well, primarily with inhabitants of Rosengain and Great Banda. From the VOC perspective, the conquests of Nera and Pulo Way in 1609 and 1616, respectively, had turned local populations into company subjects. By concluding treaties with inhabitants of Rosengain and Great Banda, both Lam and Reael sought to obtain native recognition of the changed status of Nera and Pulo Way, secure a steady supply of nutmeg and mace for the VOC, and completely isolate Pulo Run and its inhabitants, who had sided with the English. Although Reael failed to launch a successful invasion of Pulo Run in the spring of 1617 and 1618, he used all other means at his disposal to make life difficult for Courthope and his indigenous allies. He forbade any contact between Bandanese allies of the VOC and inhabitants of Pulo Run, for example. The wavering loyalties of the Bandanese proved to be the Achilles heel of his strategy. In summer 1618, Reael signed a truce treaty just with the ‘orangkayas and magistrates’ of Selamon, not with any other villages on Great Banda. Those villages had effectively sided with the inhabitants of Pulo Run (Heeres and Stapel 1907, pp. 66–9 (treaty with the Bandanese of 10 August 1609), 122–4 (treaty with the Bandanese of 3 May 1616), 127–30 (treaty with the Bandanese of 30 April 1617), 133–5 (treaty with the Bandanese of 25 June 1617), 160–61 (treaty with the Bandanese, March 1621?), 162–70 (treaty with the Bandanese of 9 May 1621; Foster 1933, pp. 261–70; Stapel 1939, vol. 3, pp. 102–4). From the Dutch perspective, the next logical step was to conquer and pacify Great Banda. More nutmeg trees grew on Great Banda than on all the other islands of the archipelago combined. The inhabitants of Pulo Run were crucially dependent for their survival on foodstuffs and water reaching them from Great Banda. That is, a Dutch conquest of the island would make it impossible for the English to continue in actual possession of Pulo Run. And so it turned out to be. Inhabitants of Great Banda repulsed Lam’s expeditionary force in June 1618, but were soundly defeated by the Dutch Governor-General Jan Pieterzoon Coen (1587–1629) three

54  Handbook on global constitutionalism years later. The Treaty of Defence, concluded by the VOC and EIC in London in June 1619, proved an unexpected benefit in pacifying the archipelago. Since the companies were now officially allied, neither the EIC merchants in Bantam and Jakarta, nor the few Englishmen left at Pulo Run, dared to interfere with Coen’s invasion plans, or offer any support to the Bandanese (Loth 1995a, pp. 724–7; Van Goor 2015, pp. 433–65). Coen’s brutal conquest of Great Banda is an inconvenient truth for many current global historians, eager to ascribe agency to indigenous peoples through various forms of ‘negotiating’ and ‘resisting’ empire. Yet the power differential between Europeans and certain native groups in Asia and the Americas is something that we ignore at our peril. At the time, many Bandanese clearly underestimated the VOC’s determination to secure a monopoly of the spice trade and the enormous resources which it could marshal against a weak, isolated polity. There were plenty of areas in the pre-modern world where Europeans struggled to get a foot in the door, yet the Banda Islands was not one of them (Meuwese 2012; Clulow 2013, 2016). Coen’s punitive expedition resulted in the near-total destruction of Bandanese society. Forty-eight orangkayas were captured, tried and executed on his order. Their relatives – approximately 789 old men, women and children – were shipped off to Batavia (modern-day Jakarta), the VOC headquarters in Asia, where they were put to work as slaves. In the end, there were only about 1,000 of an estimated 15,000 original inhabitants left on the Banda Islands. The arable land on Great Banda was divided into plots called perken, and distributed among European tenants. Many of these so-called perkeniers were former VOC soldiers. Together with company officials, they would form the upper crust of the new colonial society for centuries to come. In cultivating and harvesting the valuable spices, they could dispose of a large labour force of slaves, imported by the VOC from all parts of Asia. The Dutch conquest marked a fundamental break with the past (Hanna 1978; Niemeijer 1994, pp. 2–24; Loth 1995b, pp. 13–35; Winn 2010, pp. 365–89; Van Goor 2015, pp. 433–66).

CONCLUSION So was there such a thing as empire by treaty? Our analysis of Grotius’ justification of Dutch expansion overseas and our case study of Anglo-Dutch imperial competition over the Banda Islands suggests that, yes, treaties played an important role in the rise of Western imperialism and colonialism. Written documents were no alternative to conflict and war, but an essential part of it. Europeans used treaties to make claims to trade and territories in early modern Asia, Africa and the Americas and to (violently) contest the claims of others, be they indigenous peoples or European competitors. Armed violence was the ever-present and none-too-subtle threat at the negotiating table, both in Europe and overseas. Grotius was well aware of this, twice negotiating face-to-face with EIC representatives about the Dutch and English claims to the Spice Islands. His understanding of divided sovereignty and its implications, combined with the natural law notion of pacta sunt servanda (treaties must be performed), made it possible for him to justify the struggle for Dutch independence and the establishment of a VOC empire in Asia in very similar terms. Just as the States of Holland could punish Philip II of Spain and Portugal for transgressing the (unwritten) constitution of the Low Countries and become fully sovereign in the process, so the VOC could punish the inhabitants of the Banda Islands for their failure to abide by the delivery contracts and conquer their territory in a ‘just war’. The VOC directors and their personnel in the East showed themselves to be quick

Global constitutionalism in the early modern period  55 studies. It is also important to note that relations between human beings, whether as individuals or as groups, were ordered hierarchically in most pre-modern societies. The growth of capitalist economies and the substantial increases in literacy rates in north-western Europe in the period 1500–1800 ensured that both English and Dutch colonial officials, merchants and settlers would seek to preserve such hierarchical relations in writing. Of course, aboriginal peoples have sought to use legal procedures of various kinds, including the European courts, to contest the meaning of written documents and to offer their own readings (Economist 2016). Still, the decks were heavily stacked against them in the past, and currently remain so. Will a turn towards global constitutionalism remedy the situation? It depends on what this would mean in practice. At the time of writing, aboriginal peoples seem to be on the receiving end of global constitutionalism. Unlike TNCs, most indigenous communities do not have the financial wherewithal to hire the best lawyers in order to overturn years, if not centuries, of jurisprudence favouring Western settlers and capitalist economics. In many areas of the world, aboriginal peoples are faced with TNCs acting as de facto sovereigns – think of the position of Royal Dutch Shell in the Niger Delta, for example (Obi and Rustad 2011). National governments tend to treat indigenous communities as simply one more interest group clamouring for attention, and their complaints as actionable in domestic courts only. So far, no state has supported aboriginal peoples in appealing their cases to the international courts in The Hague. These courts have yet to take a single case brought by indigenous communities. There is no parity between states and aboriginal peoples in modern international law. Unless and until this changes, unequal treaties will remain the norm, even today.

REFERENCES Anghie, A. (2005), Imperialism, Sovereignty and the Making of International Law, Cambridge: Cambridge University Press. Belmessous, S. (ed.) (2012), Native Claims: Indigenous Law against Empire, 1500–1920, Oxford: Oxford University Press. Belmessous, S. (ed.) (2015), Empire by Treaty: Negotiating European Expansion, 1600–1900, Oxford: Oxford University Press. Benton, L. and A. Clulow (2015), ‘Legal encounters and the origins of global law’, in J.H. Bentley, S. Subrahmanyam and M.E. Wiesner-Hanks (eds), The Cambridge World History, Cambridge: Cambridge University Press, pp. 80–100. Borschberg, P. (1994), Hugo Grotius’ Commentarius in Theses XI: An Early Treatise on Sovereignty, the Just War, and the Legitimacy of the Dutch Revolt, Berne: Peter Lang. Borschberg, P. (2010), The Singapore and Melaka Straits: Violence, Security and Diplomacy in the 17th Century, Singapore: NUS Press. Borschberg, P. (2011), Hugo Grotius, the Portuguese, and Free Trade in the East Indies, Singapore: NUS Press. Chaudhuri, K.N. (1965), The English East India Company: The Study of an Early Joint-Stock Company 1600–1640, New York: Taylor & Francis. Clulow, A. (2009), ‘European maritime violence and territorial states in early modern Asia, 1600–1650’, Itinerario, 33 (3), 72–94. Clulow, A. (2013), The Company and the Shogun: The Dutch Encounter with Tokugawa Japan, New York: Columbia University Press. Clulow A. (2016), ‘The art of claiming: possession and resistance in early modern Asia’, American Historical Review, 121 (1), 17–38. Economist (2015), ‘On the electoral war-path’, The Economist, 19 September.

56  Handbook on global constitutionalism Economist (2016), ‘I’ll see you in court: indigenous groups are suing loggers, miners and pipeline-builders’, The Economist, 6 February. Foster, W. (ed.) (1905), The Journal of John Jourdain, 1608–1617, describing his experiences in Arabia, India, and the Malay Archipelago, Cambridge: printed for the Hakluyt Society. Foster, W. (1933), England’s Quest of Eastern Trade, London: A. and C. Black. Grotius, H. (n.d.), Ms. BPL 917, Leiden University Library, Leiden. Grotius, H. (2004), The Free Sea, trans. R. Hakluyt, D. Armitage (ed.), Natural Law and Enlightenment Classics, Indianapolis, IN: Liberty Fund. Grotius, H. (2005) The Rights of War and Peace, R. Tuck (ed.), 3 vols, Indianapolis, IN: Liberty Fund. Grotius, H. (2006) Commentary on the Law of Prize and Booty, trans. G.L. Williams, M.J. van Ittersum (ed.), Indianapolis, IN: Liberty Fund. Gupta, A.D. (1987), ‘The maritime trade of Indonesia, 1500–1800’, in A.D. Gupta and M.N. Pearson (eds), India and the Indian Ocean, 1500–1800, Calcutta: Oxford University Press. Hanna, W.A. (1978), Indonesian Banda: Colonialism and Its Aftermath in the Nutmeg Islands, Philadelphia, PA: Institute for the Study of Human Issues. Heeres, J.E. and F.W. Stapel (eds) (1907), Corpus diplomaticum Neerlando-Indicum: verzameling van politieke contracten en verdere verdragen door de Nederlanders in het Oosten gesloten, van privilegebrieven aan hen verleend, enz, 6 vols (1907–55), vol. 1: 1596–1650, The Hague: Martinus Nijhoff. Herzog, T. (2015), ‘Struggling over indians: territorial conflict and alliance making in the heartland of South America (seventeenth to eighteenth centuries)’, in S. Belmessous (ed.), Empire by Treaty: Negotiating European Expansion, 1600–1900, Oxford: Oxford University Press, pp. 78–100. Keay, J. (1993), The Honourable Company: A History of the English East India Company, London: HarperCollins. Kennedy, D. (2015), ‘Review of Saliha Belmessous (ed), Empire by Treaty: Negotiating European Expansion, 1600–1900’, H-Diplo, H-Net Reviews, accessed 18 April 2017 at https://​www​.h​-net​.org/​ reviews/​showrev​.php​?id​=​43387. Knaap, G. (2004), Kruidnagelen en Christenen: De VOC en de bevolking van Ambon, 1656–1696 (Cloves and Christians: The Dutch East India Company and the People of Ambon, 1656–1696), 2nd edn, Leiden: KITLV. Knaap, G. and G. Teitler (ed.) (2002), De Verenigde Oost-Indische Compagnie Tussen Oorlog en Diplomatie (The Dutch East India Company Caught between War and Diplomacy), Leiden: KITLV. Koskenniemi, M. (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960, Cambridge: Cambridge University Press. Koskenniemi, M. (2012), ‘A history of international law histories’, in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International Law, Oxford: Oxford University Press, pp. 943–71. Lesaffer, R. (2012), ‘Peace treaties and the formation of international law’, in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International Law, Oxford: Oxford University Press, pp. 71–94. Locher-Scholten, E. and P. Rietbergen (eds) (2004), Hof en Handel: Aziatische Vorsten en de VOC, 1620–1720 (Commerce and Courts: Asian Princes and the Dutch East India Company, 1620–1720), Leiden: KITLV. Loth, V.C. (1995a), ‘Armed incidents and unpaid bills: Anglo-Dutch rivalry in the Banda Islands in the Seventeenth Century’, Modern Asian Studies, 29 (4), 705–40. Loth, V.C. (1995b), ‘Pioneers and Perkeniers: the Banda Islands in the 17th century’, Cakalele: Maluku Research Journal, 6, 13–35. Masselman, G. (1963), The Cradle of Colonialism, New Haven, CT: Yale University Press. Meuwese, M. (2012), Brothers in Arms, Partners in Trade: Dutch-Indigenous Alliances in the Atlantic World, 1595–1674, Leiden: Brill Academic. Milton, G. (1999), Nathaniel’s Nutmeg: How One Man’s Courage Changed the Course of History, London: Hodder and Stoughton. Nellen, H. (2015), Hugo Grotius: A Lifelong Struggle for Peace in Church and State, 1583–1645, Leiden: Brill Academic. Nellen, H. and J. Trapman (eds) (1996), De Hollandse jaren van Hugo de Groot (1583–1621) (The Dutch Career of Hugo Grotius (1583–1621)), Hilversum: Verloren.

Global constitutionalism in the early modern period  57 Niemeijer, H.E. (1994), ‘“Als eene Lelye onder de doornen”: Kerk, kolonisatie en christianisering op de Banda-eilanden 1616–1635’ (‘Like a lily among thorns: church, colonization and Christianising in the Banda Islands, 1616–1635’), Documentatieblad voor de Geschiedenis van de Nederlandse Zending en Overzeese Kerken, 1 (1), pp. 2–24. Obi, C. and S.A. Rustad (eds) (2011), Oil and Insurgency in the Niger Delta: Managing the Complex Politics of Petro-Violence, London: Zed Books. Pagden, A.J. (1982), The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology, Cambridge: Cambridge University Press. Pagden, A.J. (1994), European Encounters with the New World: From Renaissance to Romanticism, New Haven, CT: Yale University Press. Pettigrew, W.A. (2015), ‘Corporate constitutionalism and the dialogue between the global and local in seventeenth-century English history’, Itinerario, 39 (3), 487–501. Purchas, S. (1905–07), Hakluytus Posthumus or Purchas his Pilgrimes, Contayning a History of the World in Sea Voyages and Lande Travells by Englishmen and Others, 20 vols, Glasgow: Maclehose. Reid, A. (1988), Southeast Asia in the Age of Commerce, 1450–1680, 2 vols, New Haven, CT: Yale University Press. Shaw, M.N. (1995), International Law, 3rd edn, Cambridge: Cambridge University Press. Stapel, F.W. (ed.) (1939), Geschiedenis van Nederlands Indië (History of the Dutch East Indies), 6 vols, Amsterdam: Zutphen. Stern, P.J. (2011), The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India, Oxford: Oxford University Press. Stern, P.J. (2012), ‘Corporate virtue: the languages of empire in early modern British Asia’, Renaissance Studies, 26 (4), 510–30. Stern, P.J. and C. Wennerlind (eds) (2014), Mercantilism Reimagined: Political Economy in Early Modern Britain and Its Empire, Oxford: Oxford University Press. Tex, J. den (1973), Oldenbarnevelt, trans. R.B. Powell, 2 vols, Cambridge: Cambridge University Press. Tully, J. (2008), Public Philosophy in a New Key, 2 vols, Cambridge: Cambridge University Press. Tully, J., J.L. Dunoff, A.F. Lang, Jr., M. Kumm and A. Wiener (2016), ‘Introducing integral global constitutionalism’, Global Constitutionalism, 5 (1), 1–15. United Nations (2007), ‘United Nations Declaration on the Rights of Indigenous Peoples’, 13 September, accessed 18 April 2017 at http://​www​.un​.org/​esa/​socdev/​unpfii/​documents/​DRIPS​_en​.pdf. Van Goor, J. (2015), Jan Pieterszoon Coen, 1587–1629: Koopman-Koning in Azië (Jan Pieterszoon Coen, 1587–1629: Merchant and Sovereign in Asia), Amsterdam: Boom. Van Ittersum, M.J. (2006), Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615, Leiden: Brill Academic. Van Ittersum, M.J. (2010), ‘The long goodbye: Hugo Grotius and the justification of Dutch expansion overseas (1604–1645)’, History of European Ideas, 36 (4), 386–411. Van Ittersum, M.J. (2016), ‘Debating natural law in the Banda Islands: a case study in Anglo-Dutch imperial competition in the East Indies, 1609–1621’, History of European Ideas, 42 (4), 459–501. Van Opstall, M.E. (ed.) (1972), De Reis van de Vloot van Pieter Willemsz Verhoef naar Azie, 1607–1612 (The Voyage of Pieter Willemsz Verhoef to the East Indies, 1607–1612), 2 vols, The Hague: Martinus Nijhoff. Van Opstall, M.E. (1979), ‘Laurens Reael in de Staten-Generaal, het verslag van Reael over de toestand in Oost-Indië’ (‘Laurens Reael addresses the Dutch States General: Reael’s report on the Dutch empire in the East Indies’), in M.E. van Opstall (ed.), Nederlandse Historische Bronnen, The Hague: Martinus Nijhoff, pp. 175–213. Villiers, J. (1981), ‘Trade and society in the Banda Islands in the sixteenth century’, Modern Asian Studies, 15 (4), 723–50. Vlekke, B.H.M. (1944), Nusantara: A History of the East Indian Archipelago, Cambridge, MA: Harvard University Press. Waszink, J. (2020), ‘Hugo Grotius on the agglomerate polity of Philip II’, History of European Ideas, 46 (3), 276–91. Weststeijn, A. (2014), ‘The VOC as a company-state: debating seventeenth-century Dutch colonial expansion’, Itinerario, 38 (1), 13–34.

58  Handbook on global constitutionalism Wilson, E. (2008), The Savage Republic: De Indis of Hugo Grotius, Republicanism and Dutch Hegemony within the Early Modern World-System, c.1600–1619, Leiden: Martinus Nijhoff. Winn, P. (2010), ‘Slavery and cultural creativity in the Banda Islands’, Journal of Southeast Asian Studies, 41 (3), 365–89.

5. The Enlightenment and global constitutionalism Chris Thornhill1

ELEMENTS OF THE GLOBAL CONSTITUTION There is currently much debate about the precise characteristics of the emerging form of global constitutional law. However, the more mainstream theorists of global constitutionalism, although in themselves divergent, usually organize their outlooks around the claim that general norms of international law, at least to the extent that these norms possess ius-cogens (peremptory-norm) standing, have come to acquire force close to that of a global constitution.2 As a result of this process, sovereign states are now widely seen to act as subjects within a system of global legal norms, and they assume a position similar to that of legal persons within national legal orders, defined by classical principles of public law. If we accept the definition of a global constitution which claims that binding norms of international law form the constitutional superstructure for global society as a whole, this constitution comprises a series of very distinctive features, which, at first glance, distinguish it from more classical constitutions; that is, from constitutions that are rooted in national societies, that extract legitimacy from a clearly identified constituent power, and that articulate a relatively clear hierarchy of norms to shape the use of national governmental power.3 First, the global constitution is defined, at a most essential normative level, by the primary authority of international human rights law; in the global constitution, human rights have acquired the status of non-derogable legal norms, and all laws in global society are in some way constitutionally predetermined by such human rights. This applies in the dimensions of global society that are determined by interstate interactions. Since the Universal Declaration of Human Rights (1948)4 and, above all, the Vienna Convention on the Law of Treaties (1969),5 there is a legal obligation for states to proportion their actions towards other states to norms Some of the research for this chapter was funded by the European Research Council (Advanced Grant: 323656-STC). 2 See Klabbers et al. (2009, pp. 154, 179). For a general cross-section of the standard global-constitutionalist literature, see Fassbender (1998), Dupuy (1997), Henkin (1995–96, p. 39), Kadelbach and Kleinlein (2007). For a nuanced approach, see Peters (2005), Petersmann (2001, p. 22), Kumm (2004), Helfer (2003, p. 237), Stone Sweet (2009, p. 637) and Ackerman (1997, p. 777). For an overview, see Schwöbel (2011, ch. 1). 3 This idea of the constitution was popularized in the American and French revolutions. See pp. 66–72 below. The notion that a constitution needs to be founded by a constituent power, however, still remains strong in contemporary debate. See, for example, Loughlin (2013). 4 http://​www​.ohchr​.org/​EN/​UDHR/​Documents/​UDHR​_Translations/​eng​.pdf, accessed 8 May 2017. 5 https://​treaties​.un​.org/​doc/​Publication/​UNTS/​Volume​%201155/​volume​-1155​-I​-18232​-English​ .pdf, accessed 8 May 2017. In Arts 53 and 64, the Vienna Convention designated certain norms and certain basic rights as having inviolable status for global society. 1

59

60  Handbook on global constitutionalism extracted from human rights law. This applies in the national dimension of global society; it is increasingly rare for national states to reject international human rights in their internal activities, and even states with strong ‘dualist’ legal traditions adapt their legal and administrative functions to expectations derived from international human rights law.6 Most importantly, individual persons in national societies can now, in principle, appeal quite easily to international judicial bodies when their rights are violated by their governments, which means that international courts can reach immediately into national societies and address individual persons as primary rights-holding subjects of international law. Notable in this, in particular, is the fact that this direct penetration of international human rights law creates positive obligations for states in respect of the lateral interactions between different citizens subject to their jurisdiction, such that human rights widely obtain horizontal applicability in national societies, and relations in the private domain are subject to juridification through human rights law.7 On each count, the global constitution is constructed in categories that reject positivist conceptions of state power, and which see positivist sovereignty-centred models of global order as fully discredited, primarily through the limiting force of human rights law. Second, because of this salience of human rights law, the global constitution is defined, institutionally, by the growing authority of courts and other judicial bodies as constitutional subjects. This is again visible in different dimensions of global society. In the interstate domain, recent decades have seen a dramatic proliferation of powerful courts, which increasingly assume the authority to censure and control the actions of national states, in different functional spheres. Some of these courts – notably, the European Court of Human Rights, the Inter-American Court of Human Rights and, increasingly, the International Court of Justice – provide protection for human rights as a basic constitutional structure of global society. However, even courts focused on social functions that are not intrinsically defined by human rights, such as the European Court of Justice and the Appellate Body of the World Trade Organization, have used human rights jurisprudence to cement their authority over national states. International courts, in short, play a key role in locking national states into a global rights-based constitutional order. In the national domain, further, courts have also acquired greatly expanded authority in recent decades. With variations, most national constitutions contain provisions for very powerful constitutional courts, whose basic function is to police

The UK is a classic example. Consider in particular the impact of the judgment of the Strasbourg court, Smith and Grady v UK (1999) 29 EHRR 493, which found the UK both guilty of discrimination against homosexuals and of offering inadequate judicial remedies in human rights cases. This ultimately led to a deep constitutional shift in UK administrative law, exemplified especially in R (Daly) v Home Secretary [2001] UKHL 2. 7 This is seen in the case law of supranational courts. See, for one example, the Strasbourg case X and Y v Netherlands App no 8978/80 (ECtHR, 26 March 1985). This principle is at the centre of the jurisprudence of the Inter-American Court of Human Rights, which has defined human rights obligations of individuals in the following terms: ‘The individual has acquired the status of a real active and passive subject of international law. The individual be an active subject of obligations as regards human rights, and also individually responsible for non-compliance with them’: Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A) No. 18/03 (2003) 16. Among a vast sea of cases in domestic courts see as an example the claim obiter (Nicholls LJ) in the UK case Campbell v MGN Ltd – [2004] 2 All ER 995: ‘What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person.’ 6

The Enlightenment and global constitutionalism  61 new legislation and to ensure that it is compliant with constitutional norms, including human rights provisions. In most nations, moreover, constitutional courts are expected to preserve a degree of compatibility between national laws and international human rights law, and they act as hinges, linking domestic legislation to a supra-national constitutional order, based on the primary authority of human rights. There are, of course, exceptions to this tendency, and there remain some polities in which judicial power is either relatively weak or subject to retrenchment. Current examples of this are Venezuela and, to an increasing degree, Poland and Hungary. Yet, generally, most national polities accord a central constitutional position to the higher judiciary, which, usually in close interaction with international judicial bodies, controls legislation in accordance with higher-order human rights norms.8 Third, the global constitution is defined, to a large extent, by a weakening of certain classical-constitutional concepts of democratic legitimacy; notably, constituent power and national sovereignty. At least at the level of political-normative rhetoric, classical constitutions extracted their legitimacy from the idea that they were authorized by a national sovereign people, and that the will of this people, in the form of a constituent power, established the constitution as a Grundnorm (basic standard) for the entire polity, providing a substantial and procedural basis for all subsequent legislative acts. Owing to the increasing primacy of international human rights law, however, the exercise of national sovereignty and national constituent power has been reduced in scope. The idea that founding norms are created by national political collectives, standing outside the law, has been replaced by the acceptance that some legal norms, declared in existing international conventions (that is, human rights), have a claim to constituent authority,9 and that constitutional norms created in national societies cannot contradict the basic norms (that is, human rights) of global constitutional law.10 The national constitution, thus, is always a constitution within a constitution. In addition, it is widely acknowledged that national courts, linked to the international judicial system, will assume a central position in any process of constitution-making, and that courts can obtain force close to that of a constituent power, often extracting norms from the international arena to solidify ongoing processes of constitutional foundation (see Thornhill 2014). On this basis, courts, traditionally construed as holders of constituted power and acting within limits defined by national constitutions, have commonly become holders of constituent power, and, both

For surveys of this development in different regions see Prempeh (2006); Zhu (2010, pp. 625–53); Navia and Ríos-Figuero (2005). For critical reflections on this process see Hirschl (2007, p. 723). More generally see, Hirschl (2004); Ferejohn (2002, pp. 41, 44); Schneiderman (2008); Nicol (2010, ch. 4). 9 In most constitutions created since 1945, international law has assumed de facto constitutional force. Examples among the post-war constitutions are West Germany, Japan and Italy; examples from the 1970s are Portugal and Spain; examples from the 1980s and 1990s are Brazil, Colombia, Paraguay, Russia, Poland, Ghana and South Africa. More recent examples are Ecuador, Bolivia and Kenya. 10 This assumption is clearly articulated in constitutionalist accounts of international law. See the argument in Peters (2014). Yet, this argument is also quite unmistakably enunciated in most national constitutions, and most national constitutional courts interpret domestic public law to align it to international human rights law. For the most indicative example (albeit one among many), see the reflections in the South African Constitutional Court in S v Makwanyane and Another (1995) (declaring the death penalty unconstitutional). Here, the Court noted the ‘paucity of home-grown judicial precedent upholding human rights, which is not surprising considering the repressive nature of the past legal order’. They thus concluded: ‘It requires courts to proceed to public international law and foreign case law for guidance in constitutional interpretation, thereby promoting the ideal and internationally accepted values in the cultivation of a human rights jurisprudence for South Africa.’ 8

62  Handbook on global constitutionalism nationally and domestically, they play a role at least equal to that of democratically mandated legislatures in establishing ground-rules for legal and political organization. Overall, therefore, if we are prepared to identify that global society as a whole possesses a relatively unified and normatively consistent constitution, its primary characteristics, both nationally and outside nation-states, are that: (1) it is defined by the primacy of international human rights law; (2) judicial bodies acquire authority not foreseen in classical constitutional doctrine; (3) the constituent power of the nation is a weak constitutional resource, and it is partly exercised by institutions using constituted power – the distinction between constituent and constituted power is diminished. On each of these grounds, notably, the emergent global constitution is widely counter-posed to more classical models of constitutionalism, based on the supremacy of the popular will as the origin of legitimate law. Indeed, among the otherwise very distinct accounts of global constitutional law, one point of increasing convergence is the claim that global constitutional law is not the same as classical constitutional law and it draws legitimacy for law from unfamiliar sources.11

ENLIGHTENMENT CONSTITUTIONALISM: A DISTANT MIRROR? Despite the alleged novelty of the system of global constitutional law, however, many features of this system are not entirely dissimilar to the core elements of classical constitutional theory, conceived within the longer period of the Enlightenment. Indeed, the basic principles of global constitutionalism appear in many ways, not solely as a rupture with, but also as an extension of, the normative designs that underpinned classical constitutions.12 Elements of a Global Constitution: Basic Rights For example, first, the idea that certain basic rights are established as primary constitutional norms, which no act of a public authority can violate, was clearly established in the constitutional doctrines of the Enlightenment. During the Enlightenment, the theory of rights was mainly elaborated as an account of the obligations of domestic political systems, and its primary objective was to ensure that persons in society were not exposed to depredatory acts by persons in positions of public power. For this reason, Enlightenment constitutional doctrines attached particular weight to rights covering private practices in society (for example, rights concerning freedom of ownership, freedom from unjustified fiscal extraction, and freedom of scientific inquiry and religious belief), and they used the theory of rights to construct a basic definition of the legitimate state.13 Accordingly, the later Enlightenment converged around the claim that a legitimate state is a state that does not arbitrarily intrude on such privately held rights.14 However, in many cases, this theory of rights was not restricted to national political 11 For one exemplary expression of this claim see Wahl (2011, p. 356). For variations on this position see Teubner (2012, pp. 160–61); Krisch (2010, p. 17); Kingsbury (2012, pp. 210–12). For this view in classical expression, see Kahn (2000, pp. 2, 5, 18). 12 In agreement see Cappelletti (1981, pp. 625–57); Gardbaum (2008, pp. 749–68). See also throughout Brunkhorst (2014). 13 See historical-sociological discussion of this process in Böckenförde (1999, p. 20). 14 This perspective has its origins in Lockeian theories of rights, but it can be seen as culminating in the 1791 amendments to the American Constitution.

The Enlightenment and global constitutionalism  63 institutions. On the contrary, it was clearly linked to a theory of the state which positioned the national state within an international environment, arguing that each state is merely one actor among other states, so that each state is obligated to globally valid norms. In anticipation of recent accounts of global constitutionalism, the Enlightenment was deeply marked by a reaction against positivist theories of state; much of the moral-rationalist political philosophy of the Enlightenment was founded in a rejection of the quasi-positivist theories produced during the longer aftermath of the Reformation and in the religious wars of the seventeenth century, which were intended to solidify the power of national states, in distinction from religious institutions. Such early positivist theories, reflected in the works, first, of Hobbes and Bodin, and, later, of Pufendorf and Thomasius, had emphasized the essential foundation of the state in positive-voluntaristic principles of political sovereignty. Accordingly, they deliberately denied that universal rational norms could generate reliable and enduring state institutions.15 By contrast, as discussed below, leading theorists of the Enlightenment opposed purely voluntaristic theories of the state, and they tended to see the state’s legitimacy as resulting from its compliance with generalizable norms. In consequence of this, the assumption of a clear disjuncture between domestic and global society was not a dominant part of the legal systematics produced by the Enlightenment, and the idea that a state is constitutionally legitimate to the extent that it recognizes uniform rights contained strict implications for the legitimacy of state in its external functions. As a result, the Enlightenment already spelled out basic principles of global constitutionalism. This can be seen, theoretically, in the earlier Enlightenment, in the works of Leibniz. Leibniz proposed an ethics of statehood, which clearly relativized national sovereignty as a source of authority, and which claimed that all states are subject to universally binding natural laws.16 Leibniz did not deny that laws originate in the acts of states. However, he argued that acts of state volition are only binding if they reflect the ‘formal reason of justice’ (Leibniz 1885, p. 59). It is, he explained, ‘abhorrent to reason’ that law should be simply founded in the will of the state, exercised as prerogative (Leibniz 1763a, p. 280); it is only when a state exercises a rational will, proportioned to principles of rational legal order, that powers of governance are legitimate. Leibniz’s thinking was thus shaped by an intense hostility towards the rupture between law and morality and reason and will in the more positivistic accounts of legal force that had developed during the very early Enlightenment. Law only contains legitimate obligations, he claimed, if it is in conformity with the highest principles of reason and harmony, inherent in the metaphysical foundations of the universe. On these grounds, he concluded that ‘natural law’ does not ‘differ from divine moral law’ (Leibniz 1763b, p. 270). God might have a greater facility than humans in acting in accordance with moral laws, he acknowledged; indeed, the divine will, as a perfect will, must be perfectly compliant with natural law. However, the rationally necessary content of justice is identical for both human and divine beings: justice, in fact, is external both to human minds and to divine minds, and all creation (including God) can be held accountable to the principles which rational justice

15 This tendency is usually associated with Bodin and Hobbes. For broad discussion of this point see Koselleck (1959, esp. p. 101). See the polemical claims about this in Hunter (2001). Hunter declares sympathy for the anti-metaphysical secular positivism of the early Enlightenment, and he accuses Kant of returning to neo-scholastic natural law in order to overcome it (p. 323). 16 Leibniz was keen to relativize the Hobbes-inspired claims to sovereignty of the German princes. See Leibniz (1923, pp. 3–270, 64).

64  Handbook on global constitutionalism contains (Leibniz 1885, p. 60). For this reason, clearly, the laws of single states approach their highest perfection as they approach the closest proximity to the mind of God: as their legal order becomes global.17 These ideas were later developed further by Christian Wolff, who claimed that the state misuses its authority wherever it fails adequately to appreciate that it is bound to recognize the legal subjectivity of its addressees (Wolff 1754, p. 59). In Wolff’s thought, the rationalist-metaphysical doctrines of the early Enlightenment constructed a definition of the single human being as a legal subject, endowed qua subject with rights defined under higher law, upon which no act of state can legitimately encroach; this idea still underpins global legal theory today. However, the ethics of statehood in the Enlightenment obtained its most consistently globalist expression in the works of Kant. Kant claimed that the legal actions of political collectives (states) need to be evaluated by the same rational-ethical standards that are applied to the actions of single persons, and both persons and states acquire legitimacy in their actions only insofar as they comply with principles expressing a rational will (see Cohen 1904, p. 269). Consequently, Kant argued that the ideal or legitimate political order is a state in which citizens exist under a republican constitution, in which the exercise of power is determined by generalized laws, rationally extracted from the ‘pure source of the concept of law’ (Kant 1795 [1977], vol. 11, p. 205), and defined by ‘greatest agreement’ with the categorical imperatives of practical reason. As a result, a legitimate state exists in relation of direct analogy to a self-legislating rational human being: it constitutes itself as legitimate by regulating its operations in accordance with formal ‘laws of freedom’ and by avoiding the pursuit of purposes, which it cannot reflect as compatible with principles of rational necessity (Kant 1797 [1977], vol. 8, p. 437). On this basis, clearly, Kant indicated that the laws of a legitimate state have a universal character. The laws of the legitimate state are laws that all rational citizens in domestic society must recognize as legitimate, and in which citizens recognize conditions of their own freedom. In addition, however, the laws of the legitimate state must prevent the state from acting in instrumental fashion towards other states. The rational laws of the legitimate state form basic premises for a global constitution, distilled from the idea of rational human freedom, and regulating, equally, both the domestic and the international actions of a state. Indeed, Kant specifically elaborated the idea that legitimate laws of one state and the legitimate laws of a community of states would, necessarily, express the same injunctions. He saw laws derived from the pure source of reason, sanctioning conditions of rational freedom, as providing the foundation for an ‘idea of federality, which should gradually be extended to all states’, and which secures a ‘state of freedom’ for all states, ‘in accordance with the idea of international law’ (Kant 1795 [1977], vol. 11, pp. 211–12). Given that the rationalist moral philosophy of the Enlightenment was strongly driven by a hostility to positivism and political voluntarism, it is no surprise that the Enlightenment also had globalist implications in the sphere of practical law-making. The main state constitutions created during, and as a result of, the Enlightenment, also accentuated the importance of international law, effectively assuming a position within a global constitution, and defining global constitutional norms as essential corollaries of their own normative content. To illustrate this, for example, the constitutions created in the French Revolution, often seen as a sovereigntist or even as a primarily nationalist revolution, displayed a clearly internation17 It is no coincidence that Leibniz also attempted an early formalization of international law. See Leibniz (1693).

The Enlightenment and global constitutionalism  65 alist spirit, and their authors saw legitimate national constitutions as obtaining validity from their position in a wider, global system of norms. The theory of national sovereign government underpinning the French Revolution was based on a doctrine of national self-determination, which defined each national state as a locus for the exercise of strictly defined rights, and which perceived all states as bound to respect the prior rights of persons both within their own territories and within the territories of other nations. This was expressed in the constitutions of both 1791 and 1793; Article 119 of the latter expressly recognized the inviolability of national territory. However, this obtained clearest expression in Abbé Grégoire’s draft for a Declaration of the Rights of Nations, which was presented in the National Convention in June 1793, shortly before the endorsement of the Jacobin Constitution.18 This document provided a classical internal account of national sovereignty – it insisted (Art. 6) that each nation had the right to organize and change the forms of its government, and that each nation was protected from external intervention (Art. 7). At the same time, however, this document linked the exercise of national sovereignty to a rights-based construction of international society. As a result, it insisted that only governments ‘based in equality and liberty’ had claim to legitimacy (Art. 8), and that national states had an obligation to create constitutions in conformity with international law (see Grewe 1988, pp. 660–61).19 On these grounds, the sovereign exercise of constituent power in single states was conceived as part of an emergent international order, in which the principle of nationhood, far from projecting a condition of normatively unchecked sovereign power, imagined national states as elements in a global legal system; nationalism and international law were inseparable, and the constituent force of national societies could only be exercised under international law (see Mirkine-Guetzévitch 1929, pp. 14, 17, 23). Still more emphatically, the constitutions established during the longer period of revolution in America (1776–91) were also justified through reference to international law, that is, to the law of nations and the law of treaties.20 Arguably, the American Republic came into being – initially – as a construct under international law, and the new polity acquired a personality under international law before it had acquired an internal constitutional personality. Strikingly, early advocates of American independence in the 1770s focused their argument around categories of international law to explain the position of America as a sovereign state. Jefferson’s Declaration of Independence was in itself a declaration in international law, and it enunciated the claims to national self-determination of the American colonies under concepts of rights expressly derived from the law of nations (see Armitage 2002, p. 42). During the longer period of revolution, then, international law retained vital importance as a means for protecting the emergent American state from potential international adversaries or from engagement in perilous military conflicts (see D’Amato 1988, p. 65; Jay 1989, p. 837). Throughout this time, American national sovereignty was typically defined in reference to rights and obligations

This is printed in Grewe (1988, vol. 2, pp. 660–61). The early years of the revolution were punctuated with decrees regarding rights under international law. As in the USA, this insistence on international rights was designed, not lastly, to protect the Republic from depredation by other international actors. See, for example, Robespierre’s proposition of April 1793, which compared international abuse of rights by states to the exercise of private violence by brigands and bandits. This is cited in Redslob (1916, p. 286). The reciprocity between national rights and international rights was also central to the thought of Condorcet. See Marquis de Condorcet (1847, p. 527). 20 For basic comment, see Onuf and Onuf (1993, pp. 108, 113). 18 19

66  Handbook on global constitutionalism prescribed under international law (see Wilson 1791 [1967], p. 153).21 This significance of international law was ultimately reflected in the constitutional practice of the early American Republic. The Federal Constitution of 1787–89 expressly bound Congress to recognition of international law (Art 1, 8, 10). The Judiciary Act of 1789 reinforced this obligation in the Alien Tort Statute, and it spelled out the principle that American law was subject to the law of nations. Subsequently, early opinions of the Supreme Court declared that ‘the Court is bound by the law of nations which is part of the law of the land’.22 In some of the most important cases decided by John Marshall, notably Murray v. Schooner Charming Betsy (1804), Rose v. Himely (1808) and Brown v. United States (1814),23 affirmative reference was made to foreign and international law as the basis for final ruling.24 In each respect, international law was internalized within the national polity, and it became a vital internally legitimating foundation for the exercise of national sovereignty. Both conceptually and practically, in sum, the Enlightenment developed many core principles of global constitutional law, reacting, like contemporary patterns of global constitutionalism, against earlier lineages of voluntaristic political reflection. In both the conceptual reflections and the practical achievements of the Enlightenment, in fact, national self-legislation and international law were perceived as closely interlinked parts of an implicitly formed transnational constitution. Elements of a Global Constitution: The Rise of Courts If the legal and constitutional doctrines of the Enlightenment contained very evident principles of global constitutionalism, this is not as clearly the case for theories of judicial power in the Enlightenment. In some respects, it is difficult to see the Enlightenment, at least in its practical-constitutional outcomes, as providing a model to support the later global rise of strong judicial authority. Most notably, for example, the French Revolution was driven in part by a deeply ingrained contempt for judicial power, and leading revolutionaries openly associated judges with the corrupt practices of corporations, which had dragged against the systematic organization of governmental power through the seventeenth and eighteenth centuries. Notably one of the first political acts in the revolution was the suspension of the parlements, which had acted as the highest courts under the Bourbon monarchy. In this respect, the policies of the revolutionaries after 1789 formed a deep continuum with the earlier policies of the French kings, who had also attempted repeatedly to restrict the independent authority and influence of judicial corporations.25 Accordingly, the constitutions created during the

For comment, see Forrest Martin (2007, p. 8); Cleveland (2006, pp. 35, 38). The Nereide, 13 U.S. (9 Cranch) 388 (1815). For general comment see Munn Ziegler (1939, p. 333). This principle is of course still fiercely contested and forms an important element in foreign-policy debate in the USA. On the side in favour of Marshall’s view see Lillich (1993, p. 2). 23 Murray v. The Charming Betsy, 6 U.S. 2 Cranch 64 64 (1804); Rose v. Himely, 8 U.S. 4 Cranch 241 241 (1808); Brown v. United States, 12 U.S. 8 Cranch 110. 24 For comment on these cases see Calabresi and Dotson Zimdahl (2005, pp. 763–71). 25 The tension between the French monarchy and the parlements, a long-running contest in early modern France, came to a head in the May Edicts of 1788, in which the king ordained before the Assembly of Notables that the parlements should be replaced with a single plenary court to register all laws, and that the privileges of the courts should be suspended and a uniform judicial structure imposed throughout France. 21 22

The Enlightenment and global constitutionalism  67 revolution also contained clauses that strictly limited the scope of judicial authority, placing courts within a sharply ordered separation of powers, and which defined the elected legislature as the basic focus of legal and political unity and obligation for the new republic. In France, consequently, the idea of the essential unity between the nation and its legislature remained pervasive for centuries after 1789, and it was only diluted through much later processes (in the 1970s), in which courts acquired powers to place horizontal checks on legislative acts.26 Outside France, however, the Enlightenment had a very strong judicial dimension, and it clearly promoted the rise of strong independent courts. At a conceptual level, for example, theorists of the Enlightenment placed particular emphasis on the consistency of the judiciary as a cornerstone of the legitimate state. Very early theoretical motifs of the Enlightenment were already identifiable in the judicial opinions of Edward Coke, who argued that the courts had an obligation to defend a judicially constructed common-law constitution against all exercise of political prerogative.27 Later, tellingly, Locke saw the existence of impartial judges as the first foundation of the state; he even saw the need for uniform judicial functions, in a quasi-sociological perspective, as the initial force that elevated human society above the state of nature (Locke 1689 [1960], p. 350). This idea was later taken up by Adam Smith, who also saw the need for judicial uniformity as a singularly dynamic force in human societal evolution (Smith 1762–66 [1978], p. 347). In more general practical terms, further, judicial reform was placed at the very centre of the European Enlightenment. In most countries, the principles of natural law extracted from moral philosophy were used to promote extensive reform of the judicial apparatus, focused on the imposition of uniform legal codes across the localized judicial patchwork persisting from the feudal era, and, above all, on the abolition of private justice and patrimonial courts.28 Indeed, one central objective of the legal theorists of the Enlightenment, especially in the Holy Roman Empire, was to establish a judicial system that was indifferent to confessional distinctions, allowing justice to be dispensed equally to persons affiliated to different religious denominations (see Moser 1762–82, p. 285). The longer aftermath of the Enlightenment was then dominated still more intensively by processes of judicial reform, and through the early nineteenth century most of Europe (and much of Latin America) was exposed to far-reaching processes of legal systematization through the enforcement of Napoleonic civil law. The centrality of judicial politics to the constitutional practices of the Enlightenment, however, was most obvious in the USA: judicial politics played an important role in each stage of the foundation of the American Republic – in the gradual gaining of independence from Great Britain, in the writing of the Constitution, and in the consolidation of the Republic as an early nation-state. First, prior to the Declaration of Independence in 1776, courts in different American colonies had already begun to assert the right to defend certain common-law principles, construed as natural rights, against the acts of the Westminster parliament, and to refuse to enforce certain English statutes on this basis (Boone Williams 1940). Judicial power was thus an early factor in the collective rejection of colonialism, and, while still acting under

For comment see Rosanvallon (2000). See Case of Proclamations [1610] EWHC KB J22 (1 November 1610). 28 In Prussia, for example, Samuel Cocceji used principles of natural law to insist on the need for a formally independent judiciary, separate from the executive body of the state, which could ensure that the functions of law were systematically defined and implemented. See Cocceji (1713–18 [1791–99], p. 159). 26 27

68  Handbook on global constitutionalism colonial law, American courts assumed a distinctive position in the projection of an informal constitution, which American revolutionaries eventually committed themselves to defend. The legacy of Coke was clearly very widely felt throughout the revolutionary period. Second, during the writing of the Constitution, provisions for judicial power were clearly influenced by this background. The Constitution had the – in the eighteenth century – unusual feature that it established a Supreme Court, whose powers were established under the Supremacy Clause and the Judiciary Act, and which was accorded authority to review federal statutes for compliance with the Constitution and generally to entrench core provisions of the Constitution. Third, most importantly, the powers of judicial review allotted to the Supreme Court were extended substantially during the first decades of the new Republic. Through the 1790s, a number of cases came before the court in which the court consolidated its entitlement to review federal laws, and, eventually, the court also assumed competence to strike down state laws on grounds of unconstitutionality. Under John Marshall, most notably, Justices on the Supreme Court began to claim that it was their duty to protect the constitution as a system of higher-ranking rights. This view in fact became central to Marshall’s jurisprudence, and he argued that the Constitution was a superior, paramount law for the nation, and that the Supreme Court, speaking for the ‘original and supreme will’ of the people (Hobson and Teute 1990, p. 182), was obliged to obstruct any act that appeared repugnant to the constitution. Progressively, therefore, judicial institutions evolved in the USA as bodies with distinctive nation-building capacities, imposing the Constitution as a coherently centralized set of norms across the tenuously linked domains of the new Republic, and instituting a system of rights, in which the Constitution itself was recognized as the fulcrum of the sovereign nation. Whereas revolutionary France opted for a political system based, at least in principle, on the sovereign will of the people, revolutionary America opted for a constitutional model based on the sovereignty of law, secured by courts. Both conceptually and practically, therefore, the Enlightenment also consolidated the second pillar of global constitutionalism. Indeed, the contemporary abstraction of judicial power as a repository of the sovereign will of society was clearly pre-figured in the judicial politics of the late eighteenth century. Elements of a Global Constitution: Weakening of Constituent Power It is now widely argued that the main distinction between global constitutional law and the patterns of constitutional law created in the Enlightenment is that classical constitutional law was centred on the doctrine of constituent power and national sovereignty, whereas, in global normative systems, the role of collective national agency as a source of founding norms is necessarily reduced (Grimm 1991, p. 31; Rabkin 2007, p. 70; Loughlin 2009). This construction of classical constitutionalism is shaped in particular by a reception of the constitutional doctrines of Jean-Jacques Rousseau and Emmanuel-Joseph Sieyès. Sieyès, most notably, stands out as the primary constitutional architect of the Enlightenment era, and he played a role in writing most constitutions of revolutionary and Napoleonic France. Conceptually, Sieyès built a doctrine of constitutional legitimacy on Rousseau’s earlier theory of the general will, and he used this doctrine in order to legitimate the assumption of constitution-making power by the Third Estate in Versailles in summer 1789. To this end, he argued that a legitimate constitution must be created by the nation as a whole, assembled as a constituent power, and that all laws derive their authority from the fact that they are authorized by the original decisions

The Enlightenment and global constitutionalism  69 of the constituent power.29 On this basis, there appears to exist a very distinct caesura between contemporary constitutional norms, based in part in generalized principles of international law, and the models of public law endorsed in the Enlightenment. Above all, it is clear that the specifically national dimension of constituent power – that is, the belief that a particular national collective can spontaneously determine the higher-order rules of its collective life – has been eroded through the growing force of transnational norms, and, in particular, by the presumption that national constitutions are only valid if inserted into an overarching system of basic rights. However, if we look beneath the surface of doctrines of constituent power that emerged in the Enlightenment it becomes apparent that, in this respect too, there remain important lines of continuity between contemporary and classical constitutional theory. First, it is erroneous to assume that the theory of national constituent power was native to France, or that Sieyès was its sole exponent. As was clearly recognized in contemporary discourse (Marquis de Lafayette 1839, p. 50), this doctrine had been developed in revolutionary America some time before the Estates-General met in Versailles. Ultimately, then, this doctrine was spelled out in the Federalist Papers, especially by Alexander Hamilton (Madison et al. 1787–88 [1987], p. 327). Notable in the emergence of this doctrine in the American context are two particular points. First, the doctrine of constituent power was clearly linked to preconditions regarding the importance of judicial institutions, and courts were envisioned as institutions that would entrench and protect the decisions of the constituent power in subsequent constitutional practice. In particular, courts would protect constituent power as a system of rights, and they would strive to prevent the passing of laws that might violate the rights contained in the constitution. Second, as discussed, in revolutionary America the idea of constituent power of the people was first formulated as part of an attempt to protect and consolidate a body of already existing rights, derived from a fusion of the English common law and the natural-law ideals of the Enlightenment. As a result of this, the constituent power was conceived as a focus of norm-setting agency, which merely re-articulated principles contained in an already implied constitutional order, and which secured legitimacy for the laws that it produced on this predetermined normative foundation. In post-revolutionary America, then, this secondary character of the constituent power was clearly underlined by the fact that the new Republic was immediately placed within an overarching system of international law. On each of these counts, the exercise of constituent power in and after the American revolution was perceived as the realization of an already (albeit inchoately) given body of constitutional rights, and the normative constraining of constituent power by a higher order of norms, based on universal rights, was already clearly in evidence. The idea that constituent power expressed a moment of radical constitutional foundation was never very strong. In revolutionary France, although usually seen as the site of a radically voluntaristic construction of constituent power, similar tendencies can be observed. To be sure, in post-1789 France, no strict entrenchment of the constitution was envisaged, although Sieyès did toy with the idea of introducing an early constitutional court in his drafts for the 1795 constitution (Troper 2006, pp. 525, 537). Despite this, the theory of constituent power in the French Revolution, like its equivalent in America, evidently understood legitimate constituent power as a mode of constitutional agency that was subject to prior norms, and proportioned to the

29

Sieyès saw the nation (people) as ‘the origin of everything . . . the law itself’ (Sieyès 1789, p. 79).

70  Handbook on global constitutionalism realization of principles of natural law. For example, Sieyès clearly placed his understanding of the constituent power at the core of a doctrine of rights-based juridical equality, in which the assertion of this power was synonymous with the allocation of equal rights to all persons in society.30 More importantly, then, in the white heat of revolution, Robespierre rephrased this notion, claiming that basic rights were always implied as restrictions on the volitional exercise of constituent power, and that the constituent power could only legitimately express a founding political will if it willed rights. In 1793, Robespierre concluded that constituent power could only acquire legitimacy if it projected constitutional laws within the constraints of an implied system of rights, and – most notably – if these rights were constructed as rights with universal or global validity. He explained this principle in the following terms: The Declaration of Rights is the constitution of all peoples; other laws are by their nature changeable, and subordinate to it. It must be present to all spirits, it must shine at pinnacle of your public code, and its first article must be the formal guarantee of all rights of man. (Robespierre 1957, p. 507)

As in revolutionary America, therefore, the theory of constituent power that resulted from the French Enlightenment was not conceived in a legal-constitutional vacuum, and the idea, set out by Sieyès, that the constituent power must stand radically before the law was always softened by the idea that the constituent power is always pre-defined by a corpus of rights: it always creates a constitution within a constitution. Athough the theory of constituent power appears to belong to the more voluntaristic end of the spectrum of Enlightenment political thinking, it was clearly determined by ideas of the rational will, which can be found in the works of Leibniz and Kant. Notably, the great precursor of the theory of national constituent power, Rousseau, stood between voluntarist and rationalist theories of legitimate order, and he argued that a political order becomes legitimate if it is willed by a collective will (a constituent power) that is inherently rational and can be generalized for all persons: by a will that wills rights.31 On this basis, the common claim in constitutional theory based on globalist constructions of international law that there is a deep contradiction between the volitional sovereignty of national peoples in classical constitutionalism and the overarching force of global constitutional law only has a qualified validity. In the theories of the Enlightenment, national constituent power was seen as an integrated part of a global system of rights, to which, then, it was required to give effect. The conflict between constituent power and global constitutionalism is the product of a later tradition of post-Enlightenment reflection, which imputed a more strictly nationalist, locally historicized foundation to the decisions of the constituent people (see Schmitt 1928, p. 76). The Enlightenment, however, did not see a deep conflict between constituent power and global norms, and it always perceived constituent power as a pattern of agency that brings reality to a higher-order system of rights.

Sieyès argued that the nation, as constituent power, is a people ‘all equal in rights’ (Sieyès 1789, p. 19). 31 Rousseau states, accordingly: ‘Il y a souvent bien de la différence entre la volonté de tous et la volonté générale; celle-ci ne regarde qu’à l’intérêt commun; l’autre regarde à l’intérêt privé, et n’est qu’une somme de volontés particulières’ (‘It is often the case that there is a difference between the will of all and the general will. The latter is concerned solely with the common interest, whereas the former concerns private interest, and is merely the sum of particular wills’) (1762 [1975], p. 252). 30

The Enlightenment and global constitutionalism  71

CONSTITUTIONALISM AND THE ABSTRACTION OF POLITICAL SYSTEM In summary, it is observable that, both conceptually and practically, many aspects of what is today perceived as global constitutionalism already existed in classical constitutional theory, the defining components of which were formulated during the Enlightenment. In many respects, the theory and practice of constitutionalism based on globalist ideals of international law appears, not as a rupture with classical constitutionalism, but as its extension and even as its necessary corollary. This is not only the case if we observe constitutionalism as a simple positive phenomenon. Global constitutionalism also appears as a natural extension of classical constitutionalism if we observe trajectories of constitutional norm construction, not only as positively constructed institutional systems, but as refractions of sociological processes. Most notably, if approached sociologically, we can observe that the primary feature of classical constitutionalism was that it reacted to a series of deep-lying processes, which shaped the structure of European and other societies, in the longer wake of the collapse of feudalism. Notably, the basic diction of classical constitutionalism produced a series of concepts in which political institutions learned to articulate legal norms in order to authorize their use of power, above the interwoven patchwork structure of late-medieval corporatism, and to stabilize their functions in the context of increasingly extensive, functionally differentiated, centralized societies. The constitutional idea that the state was founded on a national constituent power, above all, allowed national political systems to project their power as authorized by all society, and as applied to persons who were conceptually implicated in the production of this power. This meant that political institutions were able increasingly to presume collective authority in society, to produce laws which claimed to have collectively binding force, and to define their authority as higher than that of the local/corporate institutions which had historically been located between the state and individual persons in society. As a result, this concept provided a diction of abstraction for political power, and it made it possible for increasingly expansive national societies to construct reserves of power in a form that could be stored in central institutions, and easily transmitted, authorized and reproduced across very different societal locations. The expansion and differentiation of early modern societies stimulated a need for political institutions (that is, states) that could circulate power relatively easily across long geographical and temporal distances. Constitutions, centred on the concept of constituent power, made this possible. In some respects, if viewed literally, the rise of global constitutionalism reflects a process which is diametrically opposed to the formative dynamic underpinning classical constitutions. If classical constitutions distilled a diction of abstraction for political power in which power could be easily utilized by states, global constitutionalism clearly enacts a process in which states forfeit their classical position as dominant centres of political power and authority. However, if we observe the process of political abstraction in the Enlightenment from a more sociological standpoint, as a process in which the political system of society was constructed at a heightened level of extension and generality, something similar can be identified in contemporary society, defined increasingly by global constitutionalism. Notably, in the form of global constitutional law, political power is increasingly abstracted into a form defined by global rights, which means that it can be distributed easily, at a high level of iterability, across the rapidly widening functional and geographical spaces which global society contains, and underpins the emergence of a political system which is able more simply to replicate and

72  Handbook on global constitutionalism reproduce its power across the fissures between national states, which defined the original structure of modern society. If classical constitutionalism produced a diction of abstraction (constituent power) for the political system in the transition from early modern to modern society, global constitutionalism re-enacts this same process, and it constructs a diction of abstraction (rights) for the political system as the units of political power that characterized high modern society (states) are superseded as dominant actors. In both respects, constitutional norms are specifically formulated and cemented as institutions that stabilize the form of political power at a new level of reproducibility, and which allow the political system of society to construct and circulate political power in increasingly abstracted form, attuned to its own increasingly differentiation and expansiveness. Seen from a macro-sociological perspective, therefore, the continuity between classical and global constitutionalism appears greater than even their literal conceptual and objective similarities indicate.

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74  Handbook on global constitutionalism Madison, J., A. Hamilton and J. Jay (1787–88), The Federalist Papers, reprinted 1987, London: Penguin. Marquis de Condorcet (1847), ‘La nation française à tous les peuples’ (‘The French nation to all peoples’), in Marquis de Condorcet, Oeuvres, 12 vols, Paris: Firmin Didot Frères. Marquis de Lafayette (1839), Mémoires, correspondences et manuscrits (Memoires, Correspondence and Manuscripts), 12 vols, Brussels: Hauman et Comp. Mirkine-Guetzévitch, B. (1929), L’influence de la revolution française sur le développement du droit international dans l’Europe orientale (The Influence of the French Revolution on the Development of International Law in Western Europe), Paris: Hachette. Moser, J.J. (1762–82), ‘Von der teutschen Religionsverfassung’ (‘On the German religious constitution’), in J.J. Moser, Neues deutsches Staatsrecht, 20 vols, Stuttgart: Mezler. Munn Ziegler, B. (1939), The International Law of John Marshall: A Study of First Principles, Chapel Hill, NC: University of North Carolina Press. Navia, P. and J. Ríos-Figuero (2005), ‘The constitutional adjudication mosaic of Latin America’, Comparative Political Studies, 38 (2), 189–216. Nicol, D. (2010), The Constitutional Protection of Capitalism, Oxford and Portland, OR: Hart. Onuf, P. and N. Onuf (1993), Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814, Madison, WI: Madison House. Peters, A. (2005), ‘Global constitutionalism in a nutshell’, in K. Dicke, S. Hobe, K.-U. Meyn, A. Peters, E. Riedel, H.-J. Schütz and C. Tietje (eds), Weltinnenrecht. Liber amicorum Jost Delbrück, Berlin: Duncker und Humblot, pp. 535–50. Peters, A. (2014), Jenseits der Menschenrechte: Die Rechtsstellung des Individuums im Völkerrecht (Beyond Human Rights: The Legal Position of the Individual in International Law), Tübingen: Mohr. Petersmann, E.-U. (2001), ‘Human rights and international economic law in the 21st century: the need to clarify their interrelationships’, Journal of International Economic Law, 4 (1), 3–39. Prempeh, K. (2006), ‘Marbury in Africa: judicial review and the challenge of constitutionalism in contemporary Africa’, Tulane Law Review, 80 (4), 1239–323. Rabkin, J.A. (2007), Law without Nations? Why Constitutional Government requires Sovereign States, Princeton, NJ: Princeton University Press. Redslob, R. (1916), ‘Völkerrechtliche Ideen der französischen Revolution’ (‘Ideas on international law in the French Revolution’), in Festgabe für Otto Mayer: Zum siebzigsten Geburtstage dargebracht von Freunden, Verehrern und Schülern, Tübingen: Mohr. Robespierre, M. (1957), ‘Discours sur la Constitution’ (‘Discourse of the Constitution’), in M. Robespierre, Oeuvres, vol. 9, Paris: Presses Universitaires de France. Rosanvallon, P. (2000), La Démocratie inachevée: Histoire de la souveraineté du people en France (Uncompleted Democracy: A History of Popular Sovereignty in France), Paris: Gallimard. Rousseau, J.-J. (1975), Du contrat social et autres oeuvres politiques (The Social Contract and Other Political Works), Paris: Garnier. Schmitt, C. (1928), Verfassungslehre (Constitutional Theory), Berlin: Duncker and Humblot. Schneiderman, D. (2008), Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise, Cambridge: Cambridge University Press. Schwöbel, C.E.J. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Nijhoff. Sieyès, E.-J. (1789), Qu’est-ce que le Tiers-Etat? (What is the Third Estate?), 2nd edn, Paris. Sieyès, E.-J. (1978), Préliminaire de la constitution: Reconnaissance et exposition raisonnée des droits de l’homme & du citoyen (Preliminary of the Constitution: Recognition and Reasoned Exposition of the Rights of Man and the Citizen), Versailles: P.-D. Pierres. Smith, A. (1762–66), Lectures on Jurisprudence, reprinted in R.L. Meek, D.D. Raphael and P.G. Stein (eds) (1978), The Glasgow Edition of the Works and Correspondence of Adam Smith, Vol. 5: Lectures on Jurisprudence, Oxford: Oxford University Press. Stone Sweet, A. (2009), ‘Constitutionalism, legal pluralism, and international relations’, Indiana Journal of Global Legal Studies, 16 (2), 621–45. Teubner, G. (2012), Constitutional Fragments: Societal Constitutionalism and Globalization, Oxford: Oxford University Press. Thornhill, C. (2014), ‘Rights and constituent power in the global constitution’, International Journal of Law in Context, 10 (3), 357–96.

The Enlightenment and global constitutionalism  75 Troper, M. (2006), Terminer la revolution: La constitution de 1795 (Complete the Revolution. The Constitution of 1795), Paris: Fayard. Wahl, R. (2011), ‘Die Rolle staatlicher Verfassungen angesichts der Europäisierung und der Internationalisierung’ (‘The role of state constitutions in the face of Europeanization and internationalization’), in T. Vesting and S. Korioth (eds), Der Eigenwert der Verfassungsgeschichte: Was bleibt von der Verfassung nach der Globalisierung?, Tübingen: Mohr, pp. 355–78. Wilson, J. (1791), ‘Lectures on law’, reprinted in R.G. McCloskey (ed.) (1967), The Works of James Wilson, Cambridge, MA: Harvard University Press, pp. 69–707. Wolff, C. (1754), Grundsätze des Natur- und Völckerrechts (Principles of Natural and Völcker Law), Halle: Renger. Zhu, G. (2010), ‘Constitutional review in China: an unaccomplished project or a mirage?’, Suffolk University Law Review, 43 (3), 625–53.

6. Modern historical antecedents of global constitutionalism in theoretical perspective Michel Rosenfeld

INTRODUCTION Constitutional architecture, deployment and functioning pertain to politics and law whereas the conceptual coherence and legitimation of constitutional ordering fall within the ambit of legal and political theory. From the latter standpoint, modern historical antecedents to what may be plausibly envisaged as the modern precursor of global constitutionalism trace back to the Enlightenment. Modern constitutionalism builds on the conceptual heritage of the Enlightenment through a reworking of various strands of its earlier counterpart. The reworking in question is by no means a straightforward continuation, but instead a regrouping, transformation and redeployment of the Enlightenment’s embattled and somewhat delegitimized legacy. The normative project launched by the Enlightenment can be encapsulated in the combination of adherence to the rule of reason and promotion of equal liberty for all (Rosenfeld 2011, p. 1). As against the feudal order it undertook to replace, the Enlightenment project took a turn against faith and the divine rights of kings to make room for reason and against hierarchy based on birth to clear the way for the implantation as the new baseline carved out by the postulate of equality, according to which all human beings ought to be considered as being free and equal (Rosenfeld 1991, p. 20). Following up on this Enlightenment paradigm shift emerges modern constitutionalism and it confronts a major theoretical challenge. The latter consists in reconciling three different theoretical strands that often find themselves at odds with one another and that trace back to the ideology put forth by the Enlightenment project. The first of these strands can be characterized as the Kelsenian or positivist strand; the second, as the Rawlsian-Habermasian contractarian (or consensus-based) strand; and the third, as the Schmittian or identitarian strand. With this in mind, the next section briefly examines how the three strands at stake trace back to the deployment and adaptation of the Enlightenment ideal. Then the chapter presents a critical analysis of the main poles of friction and interaction between the three strands in the context of modern constitutionalism as fitted to the needs and aspirations of the nation-state. Finally, the chapter explores whether and how the congruities and incongruities between the three strands and the nation-state might be relevant, adaptable, or play out within the ambit of global constitutionalism.

THE THREE THEORETICAL STRANDS OF MODERN CONSTITUTIONALISM IN HISTORICAL CONTEXT The ideal of modern constitutionalism rests on four pillars: limitations of the powers of government; adherence to the rule of law; protection of fundamental rights; and g­ uarantees for the maintenance of an adequate level of democracy. The first two of these pillars, and 76

Modern historical antecedents of global constitutionalism in theoretical perspective  77 especially the functioning of a rule of law regime, require a hierarchy of norms. Kelsen’s positivist theory of law, in which the constitution or Grundnorm is at the top of the rule of law pyramid, provides a formal and rational model of the requisite hierarchy (Kelsen 1961, p. 124). Kelsenian positivism provides the structural pole of modern constitutionalism and it derives from Enlightenment-based roots going as far back as Hobbes’s social contractarian positivism (Hobbes 1651, pt II, ch. xxvi) and Kant’s critical approach (Kant 1797 [1969]) as adapted for law as a self-governing, self-contained normative order. Against the structural pole based on Kelsenian positivism, there is another complementary substantive pole that emanates from a human rights regime, such as that elaborated in the 1948 Universal Declaration of Human Rights. That Declaration and the two 1966 United Nations (UN) Covenants, one on civil and political rights, and the other on economic, social and cultural rights, trace back to the Enlightenment and to its two celebrated sources of fundamental rights: the 1789 French Declaration of the Rights of Man and Citizen and the 1791 United States (US) Bill of Rights (Henkin 1994). These latter eighteenth-century iterations of fundamental rights originated in the philosophy of the Enlightenment, with particular emphasis on Rousseau in France and on the Enlightenment philosophers’ great precursor, Locke, in the US. Eighteenth-century fundamental constitutional rights and twentieth-century human rights are to a large extent similar in content. However, whereas constitutional rights were only meant to extend to those within the polity within the scope of the relevant constitution, human rights are addressed to all human beings qua human beings and are hence meant to transcend all boundaries. The eighteenth-century Enlightenment sources of fundamental rights posit the individual as possessor of rights in abstract and universal terms. Thus, the 1789 French Declaration refers to ‘man’ and ‘citizen’ rather than to ‘Frenchman’ and ‘French citizen’. However, though conceived in broad universal terms, the scope of eighteenth-century fundamental constitutional rights could not be imagined as extending beyond the confines of the nation-state, which in different ways was in the process of construction in both France and the US (Rosenfeld 2010, pp. 157, 159). The French Declaration established political rights whereas the US Bill of Rights created legal rights. In contrast, the 1948 Universal Declaration, set against the Holocaust and intent on extending rights to all humans qua humans who possess inherent dignity, promotes rights that are primarily moral in nature (Rosenfeld 2010, pp. 252–3). Furthermore, rights, whether legal, moral or political, meant to extend in the same way to all free and equal individuals, seem best legitimated in terms of social contractarian (Rawls 1971) and consensus-based (Habermas 1996) rationalizations. Both Rawls and Habermas seek to perfect the social contract theory tradition spanning from Hobbes to Kant and aim for a synthesis that incorporates both Rousseau and Kant (Habermas 1996, p. 94; Rawls 1971, p. 11). For Rawls, this culminates in a hypothetical social contract concluded behind a veil of ignorance that aspires to casting legitimation beyond the realm of particular individual, ideological and social interests. For Habermas, on the other hand, the quest for the requisite synthesis leads to an extension of the social contract tradition into a consensus based theory (Rosenfeld 1998, pp. 303–6) built upon a discourse ethics relying upon an ‘ideal speech’ dialogue fairly and equally open to all concerned (Habermas 1984, pp. 273–337). Justifications based on a Rawlsian hypothetical social contractarian approach that transcends competing individual interests or on a Habermasian discourse ethical-based consensus focused on universalizeable norms and criteria of legal validity stand in sharp contrast with their Kelsenian positivist counterpart. Moreover, Rawlsian social contractarianism and Habermasian consensus-based

78  Handbook on global constitutionalism universalism are distinguishable regarding legal and constitutional legitimation from natural law and Lockean natural rights theory, though they bear some affinity to both of the latter. Indeed, the affinity in question derives from a common reliance on reason and emphasis on the fundamental rights of free and equal persons. The first two strands of modern constitutionalism can either stack up as ­complementary – for example, positivism to justify structure of government arrangements and Rawlsian or Habermasian criteria to justify fundamental rights – or as antagonistic – for example, an entire constitutional order justified either from a positivist or from a Rawlsian or Habermasian perspective. In either case, for a constitutional polity to acquire a distinct concrete content and life and for those within its sweep to view themselves and to interact as a coherent constitutional unit, there must be a sufficient common identity that allows for unity and for willing adherence to a common constitutional project. Accordingly, to cohere within a political society, a constitutional order must possess a distinct identitarian component. Karl Schmitt, for example, insisted that democracy and constitutionalism be understood in ethnicist terms (Schmitt 1928) and conceived of political and constitutional dynamics in terms of the tension between friend and foe (Schmitt 1996). More generally, a contrast can be drawn between a historically grounded French conception of constitutionalism where the demos is prior to the ethnos and its German counterpart, further elaborated in the early twentieth century by Schmitt, where the ethnos is at the forefront (Preuss 1994, p. 150). For our purposes, the third strand of modern constitutionalism can be referred to as the Schmittian or identitarian strand. In some cases, in the context of Westphalian mono-ethnic nation-states, identitarian issues may remain for the most part below the surface and harmony among the three above discussed strands may hold steadily. In multi-ethnic nation states and transnational polities, however, tensions between the three strands seem much more likely. Moreover, in transnational settings and a fortiori in global settings, the Schmittian or identitarian strand itself may loom as quite problematic since it may be difficult to construct or imagine a constitutionally meaningful common identity extending to all living human beings throughout the entire globe.

FIT AND FRICTION OF THE THREE STRANDS AS DEPLOYED IN THE MODERN NATION-STATE Constitutional positivism has been cast as antagonistic to natural rights, natural law and the contractarian tradition that would culminate in Rawls much before the twentieth century. In 1798, in its decision in Calder v. Bull (3 U.S. 386), the US Supreme Court Justices were split over whether the US Constitution was at the top of the law’s normative pyramid or whether it ought to be regarded as subordinated to a universal reason-based natural law or rights regime which would reign above all actually adopted constitutions and laws. As a formal matter, the positivistic position articulated in Calder has prevailed in the US ever since, but the antagonistic positions elaborated in that case have been ­displaced rather than eliminated. Thus, for example, the conflict between these positions has acquired particular prominence in the ambit of constitutional interpretation regarding subjects such as abortion1 and same-sex marriage.2 See Roe v. Wade, 410 U.S. 113 (1973). See Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

1 2

Modern historical antecedents of global constitutionalism in theoretical perspective  79 Furthermore, the antagonism under consideration also played an important role in the elaboration of the German conception of the Rechsstaat (commonly understood as the ‘rule of law’, but more accurately understood as ‘state rule through law’). In its original Enlightenment version, the Rechtsstaat was Kantian and hence, broadly speaking, contractarian in nature (Rosenfeld 2001, pp. 1320–24). In contrast, after the failed German Revolution of 1848, the Reich institutionalized a positivistic Rechtsstaat that guaranteed to the defeated German bourgeoisie state rule through promulgation and implementation of laws rather than through mere deployment of the will of the monarch (Rosenfeld 2001, p. 1326). Positivist and contractarian justifications share an important feature in common: they both are essentially procedural or process-based in nature. Positivism relies on a set hierarchy of norms and emphasizes pedigree, thus allowing for legitimation regardless of the law’s content or of the interests advanced or set back by the latter. Contractarianism, in turn, depends on a discursive process under universally accepted procedures apt to leading to a meeting of the minds among all the parties of the contemplated contract. Because the social contract, unlike a legal contract, involves a presumed or hypothetical rather than an actual historical meeting of the minds, what animates the counterfactual process involved is either reason, a conception of justice and of the right that transcends the good and interests, or a common commitment to values, such as dignity, that are supposed to rise above competing interests. When positivism and the contractarian tradition are sufficiently aligned, then the constitutional order can simultaneously be justified from the standpoint of a unified hierarchy that ensures structural integrity and a clearly marked pedigree as well as from that of reason or justice. Even assuming the above mentioned alignment to be seamless and enduring, for a constitutional order to function so as to bind an entire political community together, it would require the continuous presence of bonds of solidarity. That is, even under full justification of a constitutional order from the standpoint of reason, those subjected to the constitutional dictates deriving from the latter would need to internalize the relevant constitution by identifying with it and making it their own. A constitution becomes our own when we all partake in its identity and emerge collectively as its constitutional subject – in its multifaceted dimensions that link the maker of the constitution, those subjected to it and its content – within the ambit of a single constitutional self set against a multitude of constitutional others (Rosenfeld 2010). Thus, for example, the ‘We the People’ that gave itself the 1787 US Constitution bonded together into a constitutional self differentiated from external others – for example, the British and the French – and from internal others – for example, the African American slaves whose deprivation of personhood became constitutionally ratified.3 No matter how rationally appealing, a constitution must become engrafted in a collective self that creates, partakes and perpetuates a common identity that is formed, at least in part, against the distinct identities of multiple others. Modern nation-state constitutions are characterized by the mutual integration of unity and hierarchy. The unity at stake is encapsulated in the citizenry’s self-conception as a constitutional self coalescing as a people within a nation, whereas the corresponding hierarchy derives from the constitution as the supreme law of the polity. Construction and justification of the relevant constitutional self and the particular identity it is meant to project is to a large extent See US Constitution, Art. 1, Sec 2 (1789) (slaves to count as 3/5 of a person for purposes of allocation of population based House of Representatives Districts), and Sec. 9 (Slave trade protected from abolition through constitutional amendment prior to 1808). 3

80  Handbook on global constitutionalism contested and contestable as differences in interests, values and ideology abound in contemporary polities. Significantly, national identity requires a common investment in an ‘imagined community’ as the modern nation-state, unlike the small commune or the tribe, is built upon a union among strangers (Anderson 1991, p. 7). Similarly, the identity of the constitutional self calls for a dynamic process that maintains that which may unite the citizenry (both through nodes of common identification and through nodes of differentiation from those cast as constitutional others) above and beyond that which is prone to divide it and to alienate some communities from the common national constitutional enterprise. Alternatively, hierarchy is meant to be formally guaranteed by the place of the constitution at the top of the legal hierarchy and materially by the functioning of an institution, such as a constitutional court, charged with the authoritative interpretation of the constitution erga omnes (to all), thus binding all institutions and all individuals within the polity. In practice, at the level of justification and legitimation, a considerable degree of dis­ agreement and contestation are likely even in a mono-ethnic nation-state. Disagreements concerning politics, values, ideologies and constitutional interpretation – for example, originalists versus adaptionists in the US – are typical and seemingly inevitable. Under these circumstances, none of the three sources of legitimation discussed above would seem satisfactory. Positivism may circumscribe form and structure, but appears to be completely indifferent in relation to substance. It seems equally compatible with a good as with an evil legal or constitutional regime. Moreover, in a polity in which the citizenry is divided as a consequence of embracing competing conceptions of the good, the constitution, its interpretation and positive law may be critically regarded by some as arbitrarily enshrining the interests of others at the expense of their own. Social contractarian and consensus-based justifications are also vulnerable to critical assessments, particularly in view of their counterfactual nature in contrast to legal contract in the context of which the fact of agreement plays a crucial role in terms of legitimation. Indeed, from a critical perspective, the social contract in all its incarnations may not be able to avoid favouring some interests or conceptions of the good over others, and accordingly the counterfactual agreement that it postulates would end up being contestable or arbitrary as why would a prospective contractor sacrifice his or her interests or vision of the good in order to institutionalize those of his or her rivals (Rosenfeld 1998)? Dialogical negotiation and interaction may nonetheless be conducive to sustaining the fabric of constitutional accommodation. This would not be done by settling on contract or consensus, but instead by promoting mutual recognition through reasonable disagreement or dissent (Tully 2004, p. 95). Finally, the identitarian bond that is supposed to bind the constitutional subject into a single and coherent self may be insufficient even in a mono-ethnic setting – for example, those on the political left may be at complete odds with their counterparts on the right, and though the polity may be overwhelmingly issued from a single religious tradition, the secular citizenry may become completely polarized from their strictly practising co-religionists. Furthermore, these identitarian troubles are likely to be exacerbated in multi-ethnic, multi-religious, multinational nation-states which movements towards secession in Catalonia and Quebec attest to. Preservation and legitimation of a viable constitutional self that stands above all salient differences and against all relevant (internal and external) others are unlikely to find sufficient support in any one of the three theoretical strands associated with modern constitutionalism. Such support, however, can be mustered by a combination of partial reliance on all three of the strands involved. A relatively thick layer of common identity based on a shared history, destiny, culture and social and political association is amenable to allow for the grounding

Modern historical antecedents of global constitutionalism in theoretical perspective  81 and the shaping of a constitutional regime that all the citizenry will be able to internalize as their own and as other from (those of) others. Identity itself, though indispensable, will not by itself yield any particular constitutional architecture, commitment to the rule of law or adherence to fundamental rights consistent with the contemporary transnational human rights movement. Accordingly, architecture and fundamental rights commitments will call in part for social contractarian or consensus-based legitimation and in part for positivist justification. For example, fundamental rights may derive their normative grounding in whole or in part from consensus on human dignity. Moreover, legitimation of fundamental rights protection may draw on a broad-based consensus that encompasses transnational as well as national rights along the lines of judicial convergence that has developed among judges of the European Union Court of Justice (CJEU), the European Court of Human Rights (ECtHR) and various European nation-state constitutional court judges (Garlicki 2008). Or else, the requisite consensus may originate within a single nation-state, thus tying together identity-based justifications to pertinent normative justifications, as does Ronald Dworkin when he asserts that the US Constitution happens to have enshrined fundamental rights as conceived by liberal political philosophy and turned them into legally binding constitutional rights (Dworkin 1977, pp. 184–205). The unity and viability of a nation-state’s constitutional self can endure as long as inevitable divisions and frictions within the polity, which inevitably seem bound to create incongruities and inconsistencies, do not degenerate into seemingly unbridgeable incompatibilities. In this context, relatively thick identitarian bonds seem to play a particularly important role that may be regarded as analogous to that of family ties. Just as family ties can supersede quarrels and disagreements, so a strong common (imagined) national and constitutional identity can leave room for an extensive amount of disagreement and competition regarding constitutional interpretation and constitutional as well as ordinary politics. There are breaking points, however, as most obviously exemplified in constitutional decisions regarding secession. Both the Canadian Supreme Court and the Spanish Constitutional Court thus emphasized that any unilateral thrust toward independence respectively by Quebec and Catalonia would undermine the constitutional essentials at stake.4 Interestingly, even in the drastic case of secession, the limits of the integrity of the constitutional self can vary from one setting to another. Accordingly, the Canadian Supreme Court indicated that a negotiated secession agreement among Quebec and the rest of Canada would not be incompatible with preservation of the integrity of the country’s constitutional regime, whereas the Spanish Constitutional Court made it plain that any Catalonian secession would be destructive of the national and constitutional order circumscribed by Spain’s 1978 Constitution. In sum, the limits of identitarian unity and cohesiveness are context dependent as are the relative places of each of the three strands of modern constitutionalism in the legitimation of any particular constitutional regime functioning within the bounds of the nation-state.

4 See Reference re Secession of Quebec [1998] 2 S.C.R. 217 (Canadian S. Ct.) and Catalonia 2006 Autonomy Statute Case, No. 31/2010 (June 28, 2010, Spanish Con. Ct).

82  Handbook on global constitutionalism

ARE THE THREE STRANDS OF MODERN CONSTITUTIONALISM ADAPTABLE FOR PURPOSES OF USE IN TRANSNATIONAL AND GLOBAL SETTINGS? According to some, we already have a global constitution embodied in the UN Charter (Fassbender 1998; Chapter 25 in this Handbook), and the EU member states fashioned for themselves a transnational constitution in 2004 which was not adopted in 2005 after rejection by the French and the Dutch voters in national ratifying referenda. Nonetheless, the substance of the latter constitution was for the most part preserved in the 2007 Lisbon Treaty, which has been characterized as a constitution in all but name (Dorsen et al. 2016, p. 112). In addition, the human rights regimes issuing from international or transnational covenants or conventions, such as the UN Covenant on Civil and Political Rights as well as the UN Covenant on Social, Economic and Cultural Rights and regional transnational conventions on human rights, including the African, the European and the Inter-American, are meant to protect constitutional-like rights and can thus be regarded as partial or segmentary constitutions. Arguably, therefore, transnational and global constitutionalism is not only a possibility, but a reality, albeit one that finds itself in a rather preliminary stage. Whether regarded as a possibility for the future or as an already partially achieved reality, global and transnational constitutionalism does raise questions of legitimation, notably including whether and to what extent the three strands of modern constitutionalism may figure in any reasonably plausible scheme of justification. Above all, there are two crucial distinctions between the constitutional order that inheres in a traditional nation-state and any counterpart that may emerge in a supranational or global setting. Two major factors are always present in the nation-state, but loom as problematic in transnational settings. First, at the scale of the nation-state, there is a cohesive, unified, hierarchically ordered constitutional or legal system that maximizes formal convergence among all diverse elements and interests; and, second, there is a sufficient degree of perceived commonality or overlap among competing interests through adherence to a commonly shared national and constitutional identity. Transnational legal regimes seemingly lack the means to secure the hierarchy and unity of legal norms that nation-state constitutions have managed to institutionalize. Could transnational constitutionalism thrive nevertheless without attaining a hierarchy or unity of norms comparable to those of the nation-state? Furthermore, even assuming an affirmative answer to the latter question, it would seem that constitutions on a transnational or global scale would confront daunting hurdles along the identitarian axis. As already mentioned, maintaining the requisite common identity at the nation-state level can often be challenging and there are undoubtedly many more differences in need of harmonization at the transnational level – for example, more cultures, religions, ethnic and linguistic groups – than at that of any single nation-state. Consistent with this, it seems, at least upon first impression, that the positivist and the identitarian strands of modern constitutionalism are not readily adaptable in the context of transnational constitutional ordering. Against the unity and hierarchy of the nation-state, the transnational legal universe is one characterized above all by layering and segmenting. The European Union (EU), for example, amounts to a regional transnational comprehensive legal regime, with an elaborate separation of powers, structure and a court, the CJEU, which brings unity within the relevant layer, but does not achieve unity or hierarchy all the way down to the extent that EU member-state nations insist on the supremacy of their own constitutions in case of conflict between them and

Modern historical antecedents of global constitutionalism in theoretical perspective  83 EU law.5 As a consequence of the resulting gap in unity and hierarchy, a positivist legitimation of EU constitutionalism seemingly fails both on formal and on material grounds. Formally, there is no single hierarchy among norms that can help resolve conflicts between EU legal prescriptions and EU member-state constitutional imperatives and that can avert threats to unity. Materially, however, positivist legitimation relies on a combination of internalization of the relevant constitutional norms together with a threat of sanctions in cases of defiance against the law, and to the extent that the EU treaty-based regime is more akin to an international law regime than a nation-state domestic regime, it may suffer from a serious sanction deficit component (Hart 1994, pp. 198–9). Concerning the identitarian deficit, although the EU is the most highly integrated transnational political union to date, it has been characterized as lacking a people, a common party-based political agenda, a unified commonly shared communications forum, language or culture (Grimm 1995). At the global level at which the UN Charter might provide some semblance of a constitutional nexus, any plausible identitarian bonds loom as considerably thinner than those at stake in the context of the EU. More generally, the Schmittian friend-or-foe dynamic seems altogether unavailing at the global level, and attenuated and diluted at best at a transnational level such as that of the EU – and then there is its potentially destructive thrust within a setting such as the EU, as attested by the intensification of discord among EU member states in response to the recent financial crisis in Greece and to the refugee crisis stemming from the civil war in Syria.6 Unlike the positivist and the identitarian strands, the social contractarian- or c­ onsensus-based strand does not appear to fare worse in the global or transnational setting than in that of the nation-state. Indeed, a counterfactual social contract or consensus can in principle be as easily conceived at any level within the spectrum spanning between the city-states and the world at large. Habermas has articulated a source of justification along consensus-based lines that is meant to provide a solid normative backing to transnational constitutionalism, through his elaboration of the concept of ‘constitutional patriotism’ (Habermas 1996, p. 118). The suggestion that we may become ‘patriotic’ about constitutionalism (as opposed to our own constitution as part and parcel of the country and national identity to which we may be strongly emotionally committed) appears counterintuitive. However, we may be ‘patriotic’ about our own constitution as opposed to the concept of constitutionalism itself. This can occur either because, as in the case of the Federal Republic of Germany before reunification the German ‘nation’ was physically split and conceptually problematic, thus making room for the Basic Law to become a substitute around which West Germans could unify. Patriotism in relation to a nation-state’s constitution is also plausible if understood as patriotic embrace of our nation as a constitutional democracy, as is prevalent in the US.7 That we could and should reach a consensus regarding promotion of constitutionalism on a transnational scale seems entirely plausible from the standpoint of reason. Particularly from the perspective of Europe, which is uppermost in Habermas’s thought, recourse to constitu-

5 See, for example, Internationale Handelsgesellschaft Mbh v. Einfuhr- Und Vorratsstelle Für Getreide Und Futtermittel [Solange I], 37 BVerfGE 271 (German Constitutional Court [GCC] 1974); the Lisbon Treaty Case, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09 (GCC 2009). 6 See Smale (2015). 7 See generally, I.CON Symposium (2008).

84  Handbook on global constitutionalism tionalism beyond the nation-state offers an attractive way to insure against future recurrences of the twentieth-century unspeakable horrors brought about by Nazism and Stalinism as well as a way to overcome once and for all Europe’s millennial affliction with ceaseless wars among its peoples. Moreover, whereas spreading the virtues and potential of constitutionalism across national borders may seem eminently reasonable, enlisting in the fight against past totalitarian demons and committing energies to the vindication of human dignity and the spread of human rights may fuel passions akin to those that motivated the best among the nationalist patriots of yesteryear. As thus understood, Habermas’s concept of ‘constitutional patriotism’ would provide a substantive, as opposed to a merely structural, basis for unity within the ambit of an EU constitution and, eventually perhaps, of a global constitution. That is, if constitutional patriotism can transcend national patriotism and the dangers of Balkanization that the latter poses, then consensus over the need for legal coordination pursuant to the normative dictates of constitutionalism could cement the foundation for a functionally viable EU constitution. Not only would constitutional patriotism furnish the EU peoples with a common constitutional identity, but it would afford substantive means to overcome or mitigate the structural difficulties posed by national constitution-based resistance to EU supremacy in matters within the jurisdiction of the EU. Habermas’s conception of ‘constitutional patriotism’ has generated a considerable debate (I.CON Symposium 2008, pp. 67–152). For many, constitutional patriotism remains highly improbable. Nationalism and nation-based patriotism anchored in a common history, culture and language, and a commonly perceived national destiny can certainly stir strong – and at times excessive – emotions. However, is it credible that the ideals of constitutionalism might give rise to similar affective attachments? Or, is Habermas ultimately banking on the hope that disparate peoples, many for centuries at war with one another, will rally around an abstract ideal and make it the cement of a lasting common constitutional bond? Even conceding that constitutional patriotism could pack sufficient identitarian affective force to foster solidarity in the negative task of standing against abusive or authoritarian divisive political initiatives within and beyond the nation-state, it is difficult to imagine how it would suffice for purposes of sustaining the positive task of governing, maintaining and unifying transnational polities. This raises the question of whether the identitarian and positivist support likely to be present at the national scale may be adapted to become adaptable to the realities confronting transnational constitutionalism, or whether such support may be supplanted by altogether different sources of legitimation. As the current focus is on the suitability of modern constitutionalism justifications for transnational constitutionalism, only the first part of the above question is addressed briefly below. From the positivistic standpoint, it is highly unlikely that the unity and hierarchy that can be achieved at the nation-state level could be reproduced at the transnational or global level.8 However, from a formal perspective at least, positivism may still be enlisted to play a significant justificatory role at the transnational level. Indeed, the presence of a structural constitution has emerged as a necessity within virtually all contemporary legal regimes (Rosenfeld 2010, p. 268), including private law regimes (Hamann and Ruiz-Fabri 2008). Consistent with In this respect, it is worth noting that the EU took the same ‘constitutional’ approach to UN worldwide regulation than Germany took toward the EU in Solange I and the Lisbon Treaty Case, note 5 above. 8

Modern historical antecedents of global constitutionalism in theoretical perspective  85 that, the unity and hierarchy of the nation-state constitution could be supplemented by the structural homology among all relevant layered and segmented (formally and structurally, at least) constitutional regimes bound to come into contact with one another. That is, if all interacting units within a legal universe are circumscribed by a plurality of legal regimes, each of which comports an analogous internal hierarchy of legal norms, then the unity of nation-state constitutionalism may be plausibly replaced by a working degree of convergence among relevant constitutional layers and segments. Moreover, the convergence in question need not be strict and it may even involve a certain amount of inconsistencies as long as it avoids incompatibilities. This has pretty much been achieved in the layered constitutional environment within the EU. Significantly, for all the proclamations by member-state constitutional courts that the national constitution trumps inconsistent EU regulation, to date no such court has found an actual incompatibility leading to rejection of EU regulation as contrary to the relevant member-state’s constitution. In terms of the Schmittian-identitarian strand of modern nation-state constitutionalism, there seems to be no doubt that transnational or global constitutionalism could at best muster a much thinner bond of common identity than their nation-state counterpart. As already alluded to, multinational or multi-ethnic nation-states often have much more trouble than nationally and ethnically homogeneous states in mustering the requisite identitarian glue. Does that mean that transnational constitutionalism cannot count on any identitarian source of legitimation? Taking into account layering and segmenting and both the positive facet – involving common identitarian bonds – and the negative facet – uniting as friends to combat a common enemy – of the Schmittian-identarian strand, the best answer to the last question seems to be a qualified no. Segmented constitutional regimes, be they human rights based or interest based, such as that promoted through the World Trade Organization (WTO), appear capable of fostering closer identitarian ties than large and diverse nation-states. Indeed, human rights activists, non-governmental organizations (NGOs) and even those entrusted with official institutional roles, such as human rights court judges, may quite plausibly emotionally identify with their cause in ways that supersede the active devotion of the citizenry to the political life of a well-integrated nation-state. Furthermore, within an international regime such as that framed by the WTO, there may well be a greater convergence of interests than within a typical national polity with pronounced differences often pitting corporate management against labour and setting apart free-traders from other organized political groups and interests. With respect to layered constitutional regimes, such as the EU, however, identity bonds seem bound to be thinner than those that prevail within cohesive nation-state constitutional democracies, but that does not automatically imply a lack of the minimum of identitarian solidarity required for purposes of constitutional legitimacy. Although the EU lacks the kind of unity that prevails in federal republics, such as Germany or the US, it shares with federal regimes the potential for harmonizing layered identities. New Yorkers are quite different from Texans, for example, yet they both identify as Americans and rally together regarding the same national triumphs and tragedies. Similarly, it is quite conceivable that a thinner EU identitarian solidarity could combine with thicker member-state identity bonds to confront those beyond the EU in ‘us’ versus ‘them’ or ‘self’ versus ‘others’ terms. Thus, in good times, those within the EU can coalesce around a socio-economic vision that is distinct and that contrasts with that of the US (von Bogdandy 2005). Accordingly, without weakening their bonds of national identity, EU citizens can positively coalesce towards a common project that they can also negatively hold against the US. To the extent that layered identity is cumulative rather than

86  Handbook on global constitutionalism dissonant, a thinner transnational identity may well suffice under conditions of constitutional layering. Finally, whether layered cumulation of identities could extend all the way to the realm of global constitutionalism remains an open question. As the global constitutional subject would lack an external other, its identitarian viability would depend on the availability of internal others against which it might rise.

CONCLUSION Though it may contain a large number of twists and turns, there is a seemingly plausible path leading from the ideal of the Enlightenment to the legitimation of transnational and, much less certainly but not impossibly, of global constitutionalism. Because Enlightenment-grounded reason and equal liberty became prone to a number of competing, and even at times contradictory, interpretations, modern constitutionalism as fitted to the nation-state has had to rely for justification on the weaving together of elements from three separate theoretical strands. As detailed above, these same strands combined in different ways and relied upon in different proportions also seem suited in the context of transnational constitutionalism. In some cases, particularly when global constitutionalism is at stake, it may seem that one of the three strands of modern constitutionalism may become so attenuated as to play virtually no ascertainable role in legitimation. For example, if a global segmented constitutional regime were adopted to deal with the environment, it would seem that ­reason-based contractarian and positivist justifications would all but completely margin­alize identitarian justifications. In such a case, there would be no ­external other and no palpable friend-or-foe dynamic. Upon further thought, however, a global constitutional regime may be interpreted as depending on a conflict with an internal other – that is, the nation-state as a source of pollution and architect of a national environmental policy – and a friend-or-foe struggle against an internal enemy – that is, the nation-state as the exclusive sovereign over the sources of pollution and environmental policies within its territory. This raises larger questions: is it better to constitutionalize or to resort to other legal frameworks when dealing with global segmented or layered legal regimes? Even if constitutional frameworks were better than competing frameworks, such as those of international or administrative law at the global level, could there be a better alternative than adapting and stretching the three theoretical strands of modern constitutionalism? These questions must remain unanswered here, but they help put the previous analysis in proper perspective.

REFERENCES Anderson, B. (1991), Imagined Communities: Reflections on the Origin and Spread of Nationalism, New York: Verso. Dorsen, N., M. Rosenfeld, A. Sajo, S. Baer and S. Mancini (2016), Comparative Constitutionalism: Cases and Materials, 3rd edn, St Paul, MN: West. Dworkin, R. (1977), Taking Rights Seriously, Cambridge, MA: Harvard University Press. Fassbender, B. (1998), ‘The United Nations Charter as a constitution of the international community’, Columbia Journal of Transnational Law, 36 (3), 529–619. Garlicki, L. (2008), ‘Cooperation of courts: the role of supranational jurisdictions in Europe’, International Journal of Constitutional Law (I.CON), 6 (3–4), 509–30. Grimm, D. (1995), ‘Does Europe need a constitution?’, European Law Journal, 1 (3), 282–302.

Modern historical antecedents of global constitutionalism in theoretical perspective  87 Habermas, J. (1984), The Theory of Communicative Action: Reason and Rationalization of Society, trans. T. McCarthy, Boston, MA: Beacon Press. Habermas, J. (1996), Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg, Cambridge, MA: MIT Press. Hamann, A. and H. Ruiz-Fabri (2008), ‘Transnational networks and constitutionalism’, International Journal of Constitutional Law (I.CON), 6 (3–4), 481–508. Hart, H.L.A. (1994), The Concept of Law, 2nd edn, Oxford: Oxford University Press. Henkin, L. (1994), ‘A new birth of constitutionalism: genetic influences and genetic defects’, in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives, Durham, NC: Duke University Press. Hobbes, T. (1651), Leviathan, London: Andrew Cooke. I.CON Symposium (2008), ‘I.CON Symposium on Constitutional Patriotism’, International Journal of Constitutional Law (I.CON), 6 (3–4), 67–152. Kant, I. (1797), The Metaphysics of Morals, reprinted 1969, R.P. Wolf (ed.), trans. L.W. Beck, Indianapolis, IN: Bobbs-Merrill. Kelsen, H. (1961), General Theory of Law and State, trans. A. Wedberg, New York: Russell & Russell. Preuss, U. (1994), ‘Constitutional powermaking in the new polity: some deliberations on the relations between constituent power and the constitution’, in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives, Durham, NC: Duke University Press. Rawls, J. (1971), A Theory of Justice, Cambridge, MA: Belknap Press. Rosenfeld, M. (1991), Affirmative Action and Justice: A Philosophical and Constitutional Inquiry, New Haven, CT: Yale University Press. Rosenfeld, M. (1998), ‘A pluralist critique of contractarian proceduralism’, Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law, 11 (4), 291–319. Rosenfeld, M. (2001), ‘The rule of law and the legitimacy of constitutional democracy’, Southern California Law Review, 74, 1307–52. Rosenfeld, M. (2010), The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community, London: Routledge. Rosenfeld, M. (2011), Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account, Cambridge: Cambridge University Press. Schmitt, C. (1928), Verfassungslehre (Constitutional Doctrine), Munich and Leipzig: Duncker & Humblot. Schmitt, C. (1996), The Concept of the Political, trans. G. Schwab, Chicago, IL: University of Chicago Press. Smale, A. (2015), ‘Merkel seeks to head off opposition to Greek bailout’, New York Times, 16 August. Tully, J. (2004), ‘Recognition and dialogue: the emergence of a new field’, Critical Review of International Social and Political Philosophy, 7 (3), 84–106. Von Bogdandy, A. (2005), ‘The European constitution and constitutional identity: text and subtext of the treaty establishing a constitution for Europe’, International Journal of Constitutional Law (I.CON), 3 (2–3), special issue, 295–315.

PART II POLITICAL AND INTERNATIONAL RELATIONS THEORIES

7. Cosmopolitanism and global constitutionalism Garrett Wallace Brown

INTRODUCTION There is a vast and growing literature on the increasing constitutionalization of international law and its representational significance as a proto-foundational or already existing global constitution. As a descriptive and reflective tool, constitutionalization generally denotes ‘the process of legal codification toward the establishment and incorporation of entities into a coherent and legally objectified body of law, where legal parties, legal rights, legal obligations and legitimate centers of adjudicating power are specified’ (Brown 2012, p. 210). In the introduction to this Handbook (Chapter 1), global constitutionalism is positioned as a field of study that recognizes constitutionalization, to various degrees, as an emergence of a global rule of law, separation of powers and concerns for constituent power. As the editors suggest, what makes these three emerging features meaningful is that they can illustrate constitutional-like properties, which can both limit and enable more constitutionalized forms of global politics and law. In this regard, writ large, global constitutionalism represents an empirical, methodological and heuristic device in which to help explain and give meaning to the growth of international law, the enlargement and saliency of global legal regimes, and as a way to describe the exponential expansion and impact of international organizations and continuing normative contestations. As Jan Klabbers has suggested, the process of global constitutionalism ‘carries the promise that there is some system in all the madness, some way in which the whole system hangs together and is not merely the aggregate of isolated and often contradictory movements’ (Klabbers 2004, p. 31). Nevertheless, discussions of constitutionalization are not limited to these more descriptive and empirical dimensions outlined above. This is because the concept of constitutionalization is often coupled with normative and evaluative aspects of global constitutionalism, which can be broadly defined as an approach aimed at both shaping and improving the processes of constitutionalization by critically examining its properties in order to make normative recommendations about what a real, proto-real or hypothetical ‘global constitution’ ought or ought not resemble. For example, Marrti Koskenniemi (2007, p. 35) describes the ‘virtue of constitutionalism in the international world’ as a means to expose fundamental global injustices in order to generate a universalizing focus from which global legal reforms can be constructed. Anne Peters (2009) further suggests that normative appeals to global constitutionalism reflects an emphasis for legitimating power through the democratization of global constitutionalization processes as well as to tighten democratic relationships between states and their citizens. Others see global constitutionalism as capturing the continued entrenchment and increasing demand for human rights protection within and across global legal regimes (Habermas 2006). Lastly, some scholars of global constitutionalism suggest that the language of constitutionalism represents a ‘responsiblizing’ of the current discourse on international law. In this way, it has been argued that global constitutionalism represents a commitment to notions of mutual recognition and responsibility, enshrining this language into legal discourse and thus creating 89

90  Handbook on global constitutionalism opportunities for more intersubjective and pluralistically accepted forms of meta-constitutionality (Walker 2002). What is striking about both constitutionalization as a descriptive device and global constitutionalism as a corresponding normative heuristic is that they share many universal traits with what is often labelled as moral and institutional cosmopolitanism. Although the study of constitutionalization can to some degree distance itself from normative evaluations and prescriptions by simply ‘measuring’ the growth and contested processes of international law as an empirical phenomenon, global constitutionalism is by contrast inherently normative and operates within a universalist and cosmopolitan lexicon. The problem, however, is that this interconnection and interrelation has remained under-explored and often taken for granted. In simplest terms, cosmopolitanism can be understood as ‘the idea that there are moral duties and obligations owed to all human beings based solely on our humanity alone, without reference to ethnicity, nationality, political association, race, culture, religion or other communal particularities’ (Fine 2007; Van Hooft 2009; Brown and Held 2010, p. 1). Common to this cosmopolitan ethic are three normative commitments, which demand: (1) that the primary focus of moral concern should be individual human beings, (2) that ‘the status of ultimate concern attaches to every human being equally’, and (3) that this moral standing is attached to everyone everywhere, as if all human beings were in some meaningful sense held as universal ‘citizens of the world’ (Pogge 1992, p. 49). These commitments act as foundational principles that not only inform and motivate moral cosmopolitanism (what we owe all humans morally), but that also guide institutional cosmopolitanism and practical considerations for global institutional and legal reform. As a result, prima facie, these moral and institutional tenets share striking similarities with the global constitutionalist agenda outlined earlier and as expressed throughout the pages of this Handbook on Global Constitutionalism. This is because both global constitutionalism and cosmopolitanism posit individual human beings at the very foundation of moral and legal obligation as well as advocate for conditions of globally constituted public right and egalitarian legitimation in processes of state and global constitutionalization. However, despite the similarities there is little literature analysing the interconnections between global constitutionalism and cosmopolitanism. Owing to this lack of explicit analysis, three common practices and oversimplifications often result. The first oversimplification is that global constitutionalists are regularly and unreflectively understood as being cosmopolitans, and vice versa. The second oversimplification is that it is also often the case that those who do identify themselves as being explicitly both cosmopolitan and a global constitutionalist, have done so without fully exploring how these two traditions intersect, interrelate and inform one another. Third, many global constitutionalists are inherently cosmopolitan in their outlook, but fail to formally recognize or admit their cosmopolitan leanings owing to ignorance, denial, or in an effort to obscure these leanings so as to avoid the utopian and imperialist criticisms often directed at cosmopolitan thought. In response, this chapter starts to explore the interconnections between global constitutionalism and cosmopolitan thought, particularly as they relate to legal cosmopolitanism. By doing so, the chapter suggests that global constitutionalism is a form of legal cosmopolitanism (and vice versa) and that it would behove both cosmopolitans and global constitutionalists to make better and more explicit links between the traditions. The chapter begins with a general overview and summary of legal cosmopolitanism, which connects it to mainstream international legal theory as well as suggests some ways that it connects to global constitutionalism. The following section expands upon these connections in more detail by examining four particular

Cosmopolitanism and global constitutionalism  91 intersections where cosmopolitanism strongly overlaps with global constitutionalism and where there is mutual reinforcement and heuristic potential: (1) Kantian-based legal cosmopolitanism and minimal or pluralist constitutionalism; (2) cosmopolitan democracy, inclusive global governance and a united commitment to a cosmopolitical order; (3) world state cosmopolitanism and constitutional authority; and (4) globalization, cultural cosmopolitanism and global constitutionalization. Having outlined these interconnections, the subsequent section discusses the idea that existing state-based constitutionalism already renders the modern state a cosmopolitan entity and that this form of existing cosmopolitan constitutionalism buttresses the enthusiasm of legal cosmopolitans as well as the viability of a more meaningful global constitution.

LEGAL COSMOPOLITANISM In the most general sense, contemporary cosmopolitan legal theory upholds the idea that international law should be constituted from, and constrained by, moral and normative principles of universal human worth, human respect and global justice (Brown and Held 2010, p. 1). In so arguing, legal cosmopolitans generally adopt three approaches, often used in tandem, but sometimes maintained as separate projects. The first approach is to critically assess current international law and to suggest reformulation to bring existing practice into line with cosmopolitan moral principles. This approach highlights an objective that is to ‘evaluate certain fundamental aspects of the existing international legal order . . . [and to] propose legal norms and practices which, if implemented with reasonable care, would make the system more just’ (Buchanan 2004, p. 4). Thus, on methodological grounds, the aim of legal cosmopolitans corresponds nicely with the evaluative objectives of global constitutionalists (for example, it mirrors many global constitutionalists’ call for ‘responsiblising’ the discourse on international law). The second approach is to locate current cosmopolitan trends and tenets within processes of existing international law and politics and to examine ways that these processes can be seen to reflect an emerging cosmopolitanization of international law (Habermas 2006; Waldron 2006). Again, as above, this ‘methodology’ of locating existing normative trends and thinking of new ways to reinforce these norms closely adheres with global constitutionalism and thus signifies a shared normative aim as well as adopted technique. The third approach moves beyond the empirical, arguing that an additional level of law is necessary to secure human dignity and legal obligation beyond the traditional state-centric model of international law. This approach, which is indebted largely to the legal theory of Kant, seeks not only to change existing law, but also to create additional laws and political mechanisms at the cosmopolitan level, which create legal obligations not only between states and non-citizens, but also between individuals themselves (Brown 2009). Once again, this resonates with global constitutionalist methods, since many global constitutionalists also move beyond ­explanatory methodologies and advocate for more pronounced and obligatory legal regimes and structures. Although differences in cosmopolitanism writ large exist, what is common among legal cosmopolitans is a basic rejection of international law that is predicated solely on the Westphalian model and therefore grants absolute overriding authority to the interests of state sovereignty. Although this rejection does not mean that states are necessarily rendered incompatible with cosmopolitanism (Brown 2011), it does nevertheless translate into an argument which demands that an additional level of law, presiding at the global level, should supplement

92  Handbook on global constitutionalism and enhance current international law, in order to bring states and people under the guiding principles of cosmopolitan moral theory. To summarize, legal cosmopolitans, and most cosmopolitans in general, believe that peaceful cohabitation and justice are a question of both morality and law, and that they are thoroughly coextensive, complimentary and necessary at both the international and the global level. Nevertheless, like global constitutionalism, there remain some perennial questions about how the normative principles that motivate cosmopolitanism translate into legal practice. These debates about cosmopolitan legal theory and international legal practice have traditionally been framed as being linked to questions of positive law, legal realism, legal naturalism or liberal internationalism. Classic legal theorists of a positivist persuasion often argue that law and morality are not connected. These legal positivists believe that our obligation to any form of international law is based solely on enforcement and convention versus being based on strong moral sentiment. Since there is no institutional mechanism to enforce international law effectively, norms are therefore entirely maintained by voluntary conventions that lack the Hobbesian ‘sword’ from which law commands strong obligation (Nagel 2005). In a similar vein, legal realists suggest that international law is predicated on the protection of state sovereignty and that the structure of the anarchic international system rules out any robust and unified system of cosmopolitan law. Legal realists argue that international law is created by voluntary state treaties and covenants to which state self-determination, security and a protection of sovereignty are its primary concern. Since an overarching authority does not enforce international law, the idea of universal law cannot move beyond the minimal security and economic treaties that are enlivened by the self-interest of independent sovereign states (Rabkin 2005). As a result, in both these traditions, cosmopolitan law is often viewed as chimerical. Conversely, legal naturalism argues that morality and law are not mutually exclusive. Legal naturalism maintains that the internal aspects that underpin legal norms, and the normative foundations from which law is often created, justify and motivate the authority of law (Buchanan 2004). As many global constitutionalists also argue, legal realism fails to capture the fact that states often obligate themselves to customary international law, despite the fact that it might not be in their immediate self-interest and that it might limit some absolute conception of state sovereignty (Franck 1990). This system of self-regulation represents something more positivistic than that which legal realists proclaim, because it highlights that the moral force behind law might be more prevalent at the international level than has been assumed by legal positivists. Similarly, liberal internationalists start from this position of legal naturalism, but move further, suggesting that the legal concept of sovereignty should also be understood as a conditional right. That is, liberal internationalists not only believe that law and morality are connected, but also that the idea of sovereignty itself should be justified by various conditional moral principles of human rights, accountability to international norms, and from internal mechanisms for democratic popular sovereignty. Understanding where legal cosmopolitanism fits into these legal traditions is often difficult to ascertain. This is because legal cosmopolitanism mirrors, but also moves beyond, several of the aforementioned positions, sitting somewhere beyond liberal internationalism, while also sharing liberal principles of conditional sovereignty as well as more positivist conceptions of law. For example, as part of the Kantian tradition, contemporary cosmopolitans often argue that domestic law and any right to sovereignty under a cosmopolitan system of law should be justified through a conception of conditional sovereignty and republican or democratic law (Franceschet 2002). In this regard, legal cosmopolitanism often overlaps with liberal interna-

Cosmopolitanism and global constitutionalism  93 tionalism, in that both share the belief that it is through the make-up of a conditional sovereign that the freedom of every member of society as a human being can be secured. Furthermore, many liberal internationalists stray considerably close to cosmopolitan legalism in that many argue passionately for the universal protection of human rights and for the additional requirement that these rights act as the foundation of any legitimate international legal order (Wheeler, 2002). However, despite the similarities, there are subtle differences that exist between liberal internationalism and most cosmopolitans. First, in line with the Natural Law tradition, liberal internationalists often restrict themselves to a state-centric approach, operating within the language of international relations, while remaining loyal to traditional approaches of international governance and international law (Franceschet 2002). Although cosmopolitanism can reconcile states with cosmopolitan law (Brown 2011), many contemporary cosmopolitans have viewed the state system as increasingly obsolete in the face of global collective action problems and growing non-governmental organizations, thus constructing global institutional arrangements that in various ways supersede or augment current multilateralism. Secondly, although not true of all liberal internationalists, there is certainly a predominate assumption within classic liberal internationalism that if all states were to be democratic and economically neoliberal, then that would be enough to end war, increase cooperative interdependence and secure universal human rights. Although some cosmopolitans might agree in principle, cosmopolitanism on the whole demands that a more robust normative commitment to global distributive justice also be secured (Archibugi 2008). In this regard, cosmopolitan moral and legal theory moves further than international liberalism, in that it calls for significant changes to be made to the current system of international law, economics and governance. These changes include combinations of democratic reform and broader non-state inclusion at the global level (Held 1995), a solid commitment to global distributive justice (Moellendorf 2009), the corresponding regulation of global capitalism (Barry 1998), a more robust commitment to universal human rights (Pogge 2002), institutional mechanisms to promote cross-cultural dialogue and recognition (Appiah 2006) and the establishment of a global legal system that directly mirrors basic cosmopolitan principles of individual worth, equality and universality (Brown 2009). Therefore, unlike liberal internationalism, cosmopolitans argue for a system of global justice that is more robust than a simple state-centric commitment to international law. As outlined in the next section, this system of cosmopolitan constitutionality can range from extreme forms of world state institutionalism (Cabrera 2004); to multilevel and stakeholder cosmopolitan democracy (Held 1995); to more moderate forms of ­cosmopolitanism that rest on a minimal and more pluralistic conception of cosmopolitan law as a means for peaceful coexistence (Brown 2009). However, it is important to note that all contemporary designs for institutional cosmopolitanism are grounded on an assumption of a practised cosmopolitan law and some meaningful notion of global constitutionalism. This is because when surveying the literature, it is apparent that cosmopolitans assume and ground their more elaborate forms of institutional cosmopolitanism on some already existing level of ‘cosmopolitan democratic law’ (Held 2010, p. 92), a respect for ‘cosmopolitan rights’ (Hayden 2005), ‘cosmopolitan law-enforcement’ (Kaldor 2003, p. 116) or a formal commitment to ‘political cosmopolitanism’ (Fine 2007, p. 113). Thus, in a move from cosmopolitan moral theory to institutional cosmopolitanism, cosmopolitans rely on a notion of cosmopolitan legal and political order and a presupposition that this condition is maintained (or can be maintained) in some thoroughgo-

94  Handbook on global constitutionalism ing way as global constitutional practice. It is here where cosmopolitanism, constitutionalization and global constitutionalism most obviously meet.

GLOBAL CONSTITUTIONALISM AND COSMOPOLITAN FOUNDATIONS There are numerous areas where global constitutionalism and cosmopolitanism interconnect and mutually reinforce. The first place is in regard to what the introduction to this Handbook (Chapter 1) labels global constitutionalism’s ‘historical antecedents’. This is because global constitutionalists often reference the works of Cicero, Marcus Aurelius, the Thomists and Immanuel Kant, citing their historical influence as well as making appeals to their philosophical foundations (see Chapter 1 in this Handbook). Yet, what is often understated is the fact that the aforementioned scholars were not just constitutionalists, but were also explicitly cosmopolitan, who expanded their constitutional theories to the global level precisely because of their cosmopolitan moral, institutional and pragmatic beliefs. In this way, when global constitutionalists reference the jurisprudential authority of Cicero, Las Casas or Kant, they are also, to a large degree, accepting the foundational moral and legal cosmopolitanism that inherently underwrote and motivated their ideas about global constitutionalism. This makes sense, since the three main pillars of global constitutionalism (rule of law, legitimation of power, and constituent power) are not truths in themselves, but require philosophical justification from which scholars such as Kant or Cicero provide useful firepower. Furthermore, when boiled down, the three pillars of global constitutionalism ultimately rely on metaphysical or transcendental foundations, which philosophically ground the question as to why legitimacy, the rule of law and constituents matter. When boiled down even further, it becomes clear that these justifications undoubtedly have a cosmopolitan characteristic (even so-called ‘critical’ approaches question domination and power, which is tied to universal human subjectivity, which is a metaphysical presupposition of common humanity and a universal ‘good’ to be protected). Finally, if appealing to these moral authorities for ‘firepower’ is not the intent of global constitutionalists, then global constitutionalists are insufficiently articulating their own normative and moral foundations, and thus additionally failing to explicitly make necessary distinctions when making appeals to these philosophical powerhouses. Second, by comparing cosmopolitans such as Kant with the constitutionalism associated with the Natural Law tradition (such as Hugo Grotius, Samuel Pufendorf and Emer de Vattel), it can help to reveal key conceptual distinctions between liberal internationalism and cosmopolitanism. Moreover, examining these conceptual distinctions also helps to separate many global constitutionalists from mainstream liberal internationalism, thus also revealing many of global constitutionalism’s cosmopolitan tendencies. The significant difference between the Natural Law tradition and cosmopolitanism is the range to which universal moral commitments are to be extended at the global level. Traditionally most Natural Law theorists promoted the contractual creation of a sovereign state as the ultimate source for ethical law and human emancipation. Inherent in this type of contractarian argument is the idea that self-interested individuals contract with one another to create political institutions of mutual preservation and right. Nevertheless, contracts between individuals immediately create boundaries between contracted citizens and other non-citizens, who are not considered to be members of the legal community. Although some Natural Law

Cosmopolitanism and global constitutionalism  95 theorists sought limitations on state power in order to promote the natural rights of individual cooperators (and thus were not called ‘sorry comforters’ by Kant), they nevertheless did not always argue for strong principles of cosmopolitan law that created imperative moral obligations between bounded political communities or between states and non-citizens (Brown 2009, pp. 89–94). It was from Kant’s development of cosmopolitan law that stronger commitments to cosmopolitan principles were developed away from, and as a supplement to, the Natural Law tradition. Unlike the Natural Law tradition of jus gentium (law of nations), Kant suggested that a higher level of cosmopolitan law was necessary in order to place greater limits on the law of nations, the Treaty of Westphalia, and the injustices legitimated by claims to state sovereignty made under these legal regimes. For Kant, cosmopolitan law was meant to expand the scope of public right beyond a strict state-centred focus to one that encompassed all members of the Earth, especially non-citizens. As Charles Covell suggests (1998, p. 141), cosmopolitan law ‘was the body of public law . . . constituting the juridical framework for the intercourse of men and states, considered in their status as bearers of the attributes of citizenship in an ideal state that extended to embrace all mankind’. To create this new level of constitutionalism, a condition of cosmopolitan right would require ‘the sum of laws that need to be publicized in order to produce [this] rightful condition, one in which individuals, nations and states can enjoy their rights’ (Gregor 1988, p. 71). Furthermore, Kant argued that international law should rest on the foundation of a mutually contracted pacific federation of independent states, dedicated not only to principles of conditional sovereignty, peace and mutual international right, but were also further committed to the establishment and protection of universal laws of hospitality beyond borders (Kant 1785 [1981], 1795 [1970]; Brown 2009). In this regard, Kant moved beyond a bordered conception of legal obligation and duty, to one that politically reaches all members of the globe as if they were equal citizens, regardless of their immediate political affiliation. The idea behind establishing a consistent commitment to basic laws of hospitality was to create a political condition where ‘continents distant from each other can enter into peaceful mutual relations which may eventually be regulated by public laws, thus bringing the human race nearer and nearer to a cosmopolitan constitution’ (Kant 1795 [1970], p. 106). In this regard, similar to Walker’s (2002) intersubjective meta-constitutionality, Kant’s cosmopolitan goal is to create the foundations for an ethical order of legal norms that would, with time and commitment by like-minded members, establish the grounding for the practice of a more robust cosmopolitan legal and political order. An order that transforms these minimal laws of hospitality into a more constitutionalized form of cosmopolitan law and cosmopolitics, so as to provide ‘the systematic union of different rational beings through common laws . . . in a universal kingdom of ends’ (Kant 1785 (1981), p. 39). There are several overlaps between this cosmopolitan vision and the normative agenda of global constitutionalism. First, both cosmopolitans and global constitutionalists see the constitutionalization of international law as an iterative process that, if done in relation to a series of normative principles, can amalgamate a plurality of legal and political sources into a rule guiding global constitutional order of some kind. Second, both cosmopolitans and global constitutionalists seek to move beyond the Natural Law tradition as outlined above, by advocating stronger legal and political commitments that rest above and beyond current state-based multilateralism. This can be advanced as both a critique of existing structures of globalization and constitutionalization as well as an attempt to bolster existing or emerging ‘cosmopolitan’

96  Handbook on global constitutionalism principles already entrenched in international law and politics. Third, both cosmopolitans and global constitutionalists base their institutional arguments upon the idea that they must reflect moral, normative and philosophical commitments. These commitments clearly overlap and include: the argument that the worth of human beings trumps absolute sovereignty; that sovereignty is conditional based on notions of social contract theory or popular sovereignty; that authority should be fairly distributed based on principles of self-legislation; and that there should be a strengthened community of states with corresponding responsibilities and inclusion mechanisms. As Anne Peters nicely summarizes, global constitutionalism is ‘a stand of thought (outlook or perspective) and a political agenda which advocates the application of constitutional principles, such as the rule of law, checks and balances, human rights protection, and democracy, in the international legal sphere in order to improve the effectivity and fairness of the international legal order’ (Peters 2006, p. 583). A second intersection between global constitutionalism and cosmopolitanism is a commitment to democratic legitimacy and what both cosmopolitans and global constitutionalists call ‘constituent power’. As Anne Peters has suggested, global constitutionalism reflects an emphasis for legitimating power through the democratization of global constitutionalization processes as well as in promoting tighter democratic relationships between states and their citizens (Peters 2009). This normative commitment for increased democratization, both domestically and globally, reflects what has been labelled cosmopolitan democracy and its moral and institutional advocacy for embedding democratic principles into global structural reform (Held 1995, 2010; Archibugi 2008). In summary, cosmopolitan democracy is a sub-discipline of cosmopolitanism that argues that global governance should democratically represent those affected by its decision-making processes and that stakeholders should have reasonable opportunities to affect decisions that affect their lives (Held 1995). In institutional terms, this has translated into models of democratic multilevel governance, multi-sectoral international institutions, dispersed democratic subsidiarity, United Nations (UN) democratic reform, deliberative global forums and the direct democratization of national foreign policy decisions. Again, this form of cosmopolitanism mirrors several global constitutionalist agendas. Primarily, it is possible to see overlaps between Bardo Fassbender’s call for procedural reform within the UN Charter and its ability to more effectively act as a basis for global constitutionalism. As Fassbender suggests (2009), the UN Security Council (UNSC) lacks representational legitimacy and if the UN Charter is to better act as a global constitution, reforms are required to better democratize and make representative the UNSC and beyond. This comes strikingly close to the explicit UN reforms advocated by cosmopolitans such as Daniele Archibugi (2008), who has provided detailed analysis and recommendations for how to democratize the UN within a larger system of cosmopolitics. Reverse overlaps between cosmopolitans and global constitutionalism are also manifest. One area where cosmopolitans are almost certainly global constitutionalists is in relation to world state cosmopolitanism (Cabrera 2004) or what is also referred to as world government (Marchetti 2008) or world federalist cosmopolitans (Yunker 2007). These cosmopolitans are distinct from more moderate cosmopolitans (a distinction is often made between strong or extreme and weak or moderate cosmopolitans), since their institutional models by necessity demand robust notions of positive law, global authority, a global parliamentary system, a global judiciary, global law enforcement and global economic distribution mechanisms. As a result, since this institutional structure will require an extensive balancing between law and politics, various constituencies, disparate cultures and manifold sources of law into an explicit

Cosmopolitanism and global constitutionalism  97 institutional framework – as well as the normative principles that will motivate obligation and institutional legitimacy – a more exacting form of global constitutionalism will therefore be necessitated (Scheuerman 2014). Although most cosmopolitans reject world state cosmopolitanism (rightly or wrongly) on moral and/or practical grounds, the overlaps with global constitutionalism are obvious, since a world state rests firmly on the presupposition that this political and legal order has been somehow solidified, objectified and universalized. Finally, most cosmopolitans and global constitutionalists share two further intersections. One, as mentioned above, cosmopolitans and global constitutionalists both cast a critical and normative eye upon processes of globalization (Habermas 2006; Koskenniemi 2007; Peters 2007; Held 2010; Cohen 2012). By doing so, they highlight existing inequalities as well as suggest structural reforms so as to render existing processes of globalization more just. Two, most cosmopolitans and global constitutionalists are open and sympathetic to recognizing cultural pluralism and thus share an understanding that a key role of constitutional thinking is the attempt to arbitrate, amalgamate and settle issues of entrenched value pluralism (Waldron 2000; Walker 2002; Brown 2009; Cohen 2012). In this regard, it is possible to understand both legal cosmopolitanism and global constitutionalism as the attempt to locate legal and political mechanisms of legal and political coexistence, versus demanding that cultures must perfectly cohere (Brown 2009). It is here, where constitutionalism writ large acts as both a normative foundation as well as a practical mechanism, that cosmopolitanism and global constitutionalism can be further established as reinforcing and enthusing one another.

CONSTITUTIONS, THE COSMOPOLITAN STATE AND GLOBAL CONSTITUTIONALISM Cosmopolitans have often argued that we have always lived in a cosmopolitan world. Cosmopolitans such as Jeremy Waldron (2000), Kwame Appiah (2006), David Held (2010) and myself (Brown 2009) have grounded our cosmopolitan arguments on an empirical claim that cultures are already largely cosmopolitan constructions, which are made up of multifarious influences that have been borrowed, stolen, inherited and amalgamated from different cultural sources (Waldron 2000). In making these claims, cosmopolitans draw attention to the fallacies of communitarian claims to ‘authenticity’ and particularism, which is often claimed by non-cosmopolitans who see communities, cultures, civilizations, nations, states, and their existing constitutional arrangements, as unified bounded entities that automatically restrict the scope, depth, interconnections and aspirations of cosmopolitanism. For these more Hegelian-inspired legal scholars, a constitution represents a personification and manifestation of communal identity, en communion (shared communal recognition), which is necessarily threatened by the universalizing nature of both global constitutionalism and notions of cosmopolitan law. Nevertheless, there exist both theoretical and practical reasons to challenge this limited understanding of constitutionalism and its supposed incompatibility with the universalism of legal cosmopolitanism and global constitutionalism. As with the arguments made by cultural cosmopolitans, it could also be argued that the modern state and its legal and political evolution is already in many ways a cosmopolitan construction and ‘that all states are cosmopolitan, whether they identify themselves as such or not’ (Glenn 2013, p. vii). As Patrick Glenn has suggested, a thesis of this sort has deep empirical and normative implications, because it calls

98  Handbook on global constitutionalism into question the continued efforts by states and neo-­sovereigntists to indoctrinate an unreachable condition of social uniformity as an underwriting constitutional norm (Glenn 2013, p. viii). These efforts, he adds, increasingly fly in the face of both historical precedence and the emergence of a globalized and potentially more constitutionalizing world. To begin to defend the notion that the state is already cosmopolitan and that this lends weight to arguments for a cosmopolitan global constitution, Glenn starts by highlighting the empirical reality ‘that there never has been and, it may safely be added, there never will be, a nation-state’ (Glenn 2013, p. viii). This is because all states are in fact an amalgamation of different cultures, communities, religions and sources of law. In addition, if we understand both institutional cosmopolitanism and global constitutionalism as representing an open set of negotiated legal and political mechanisms aimed at balancing, adjudicating and amalgamating pluralistic sources of law and politics, then the state has, by necessity, had to employ various forms of institutional cosmopolitanism and broadened constitutionalism (see Chapter 1 in this Handbook). If this empirical reality is true, then ‘all states are therefore cosmopolitan’ in their basic political, legal and historical functions (Glenn 2013, p. viii). Moreover, if constitutions are in fact a useful and tested cosmopolitan mechanism to balance and amalgamate pluralistic sources of law and politics, then there is theoretical and practical justification to think about global constitutionalism as being a viable reformist platform. To further support the potential ‘viability’ of cosmopolitan constitutions, there are three universal conditions that ground cosmopolitan constitutionalism. First, each society has its own set of common laws and these common laws have been interpreted and transfused in relation to other common laws that came before or from beyond. Hence these common laws continue to meet, mix and contest, which illustrates an ongoing cosmopolitanism that is foundational, enduring as well as amendable. Second, the fact that most states, if not all, utilize aspects of constitutionalism, which itself is a process of negotiation and the coordination of plural entities, shows again an aspect of cosmopolitan legal logic that has not only been a primary mechanism of state coordination, but that provides historical precedence in discussions about global constitutionalism. Third, an ‘essential feature of institutional cosmopolitanism is the coexistence of institutions, often on the same territory’, but also with institutions beyond borders (Glenn 2013, p. 286). This coexistence has been repeatedly successful in reconciling state authority with religious doctrine, private authorities, other states, international institutions, and diverse cultural traditions. All of which illustrates an enduring cosmopolitanism in practice that sits at the core of the modern state, international politics and within many processes of global constitutionalization. As a result, Glenn’s argument suggests a series of conceptual linkages among constitutionalism, cosmopolitanism and global constitutionalism. It also adds and captures the normative demands of both traditions, since it posits that a more viable form of cosmopolitan law and global constitutionalism should ‘acknowledge legal contradictions, to preserve existing legal diversity, and to provide cosmopolitan and practical forms of dispute resolution’ (Glenn 2013, p. 274). Therefore, if conceptualized properly, cosmopolitan law as well as renewed thinking about the cosmopolitan state can help us to dispense with the idea of creating an impossible condition of nation-state unity and bounded homogeneity within the international system. Instead, the key is to accept the cosmopolitan character of the state and the diversity of cosmopolitan legal traditions that will continue to underpin the state and which will undoubtedly shape new forms of legal coexistence and constitutionalization beyond it.

Cosmopolitanism and global constitutionalism  99

CONCLUSION The aim of this chapter has been to start to expose the key interconnections between global constitutionalism and cosmopolitan thought. In doing so, it was possible to locate a number of normative, empirical, methodological and foundational overlaps. Although these interconnections could only be explored here in a cursory fashion, prima facie, the evidence strongly intimates that global constitutionalism is in fact a form of legal cosmopolitanism and that cosmopolitans have traditionally relied on some meaningful conceptualization of constitutionalization and global constitutionalism. As a result, it would behove both cosmopolitans and global constitutionalists to make better and more explicit links between the traditions. In doing so, global constitutionalism will gain considerable normative potency, strengthening its ability to better articulate its philosophical foundations as well as why these foundations are metaphysically, morally, transcendentally, empirically and pragmatically more attractive than competing approaches (Brown 2012). Conversely, cosmopolitan transitions from theory to practice, which are usually weak on providing institutional substance, will significantly gain from the empirical dimensions that constitutionalization and constitutionalism offer. Thus, global constitutionalism could provide a useful and fruitful bridge from cosmopolitanism’s more robust moral theory to its weaker institutional manifestations. Importantly, this sort of mutual reinforcement is both timely and heuristically valuable. For as Glenn aptly points out, the world and its entities are already cosmopolitan. What is required, Glenn would argue, is a better presentation for why this is the case and why the idea of a cosmopolitan constitution therefore has logical precedence.

REFERENCES Appiah, K.A. (2006), Cosmopolitanism: Ethics in a World of Strangers, New York: W.W. Norton. Archibugi, D. (2008), The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy, Princeton, NJ: Princeton University Press. Barry, B. (1998), ‘International society from a cosmopolitan perspective’, in D.R. Mapel and T. Nardin (eds), International Society: Diverse Ethical Perspectives, Princeton, NJ: Princeton University Press, pp. 144–63. Brown, G.W. (2009), Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution, Edinburgh: Edinburgh University Press. Brown, G.W. (2011), ‘Bringing the state back into cosmopolitanism: the idea of responsible cosmopolitan states’, Political Studies Review, 9 (1), 53–66. Brown, G.W. (2012), ‘The constitutionalization of what?’, Global Constitutionalism, 1 (2), 201–28. Brown, G.W. and D. Held (2010), The Cosmopolitanism Reader, Cambridge: Polity Press. Buchanan, A. (2004), Justice, Legitimacy and Self-Determination: Moral Foundations of International Law, Oxford: Oxford University Press. Cabrera, L. (2004), Political Theory of Global Justice: A Cosmopolitan Case for a World State, New York: Routledge. Cohen, J. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism, Cambridge: Cambridge University Press. Covell, C. (1998), Kant and the Law of Peace: A Study in the Philosophy of International Law and International Relations, New York: Palgrave. Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community, Amsterdam: Martinus Nijhoff. Fine, R. (2007), Cosmopolitanism, New York: Routledge.

100  Handbook on global constitutionalism Franceschet, A. (2002), Kant and Liberal Internationalism: Sovereignty, Justice and Global Reform, New York: Palgrave. Franck, T. (1990), The Power of Legitimacy Among Nations, Oxford: Oxford University Press. Glenn, H.P. (2013), The Cosmopolitan State, Oxford: Oxford University Press. Gregor, M.J. (1988), ‘Kant’s approach to constitutionalism’, in A.S. Rosenbaum (ed.), Constitutionalism: The Philosophical Dimension, New York: Greenwood Press, pp. 65–78. Habermas, J. (2006), The Divided West, Cambridge: Polity Press. Hayden, P. (2005), Cosmopolitan Global Politics, Aldershot: Ashgate. Held, D. (1995), Democracy and the Global Order: From the Modern State to Cosmopolitan Governance, Stanford, CA: Stanford University Press. Held, D. (2010), Cosmopolitanism: Ideals and Realities, Cambridge: Polity Press. Kaldor, M. (2003), Global Civil Society: An Answer to War, Cambridge: Polity Press. Kant, I. (1785), Grounding for the Metaphysics of Morals, trans. J.W. Ellington (1981), Cambridge: Hackett. Kant, I. (1795), ‘Perpetual peace: a philosophical sketch’ reprinted in H.S. Reiss (ed.), (1970), Kant’s Politics Writing, Cambridge: Cambridge University Press. Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58. Koskenniemi, M. (2007), ‘Constitutionalism as a mindset: reflections on Kantian themes about international law and globalization’, Theoretical Inquiries in Law, 8 (1), 9–36. Marchetti, R. (2008), Global Democracy: Ethical Theory, Institutional Design and Social Struggles, Oxford: Routledge. Moellendorf, D. (2009), Global Inequality Matters, Basingstoke: Palgrave. Nagel, T. (2005), ‘The problem of global justice’, Philosophy and Public Affairs, 33 (2), 114–47. Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental international norms and structures’, Leiden Journal of International Law, 19 (3), 576–610. Peters, A. (2007), ‘The globalization of state constitutions’, in J.E. Nijman and A. Nollkaemper (eds), New Perspectives on the Divide Between National and International Law, Oxford: Oxford University Press. Peters, A. (2009), ‘Dual democracy’, in J. Klabbers, A. Peters and G. Ulfstein (eds), The Constitutionalization of International Law, Oxford: Oxford University Press, pp. 263–341. Pogge, T. (1992), ‘Cosmopolitanism and sovereignty’, Ethics, 103 (1), 48–75. Pogge, T. (2002), World Poverty and Human Rights, Cambridge: Polity Press. Rabkin, J. (2005), Law without Nations? Why Constitutional Government Requires Sovereign States, Princeton, NJ: Princeton University Press. Scheuerman, W. (2014), ‘Cosmopolitanism and the world state’, Review of International Studies, 40 (3), 419–41. Van Hooft, S. (2009), Cosmopolitanism, Stocksfield, Northumberland: Acumen. Waldron, J. (2000), ‘What is cosmopolitan?’, Journal of Political Philosophy, 8 (2), 227–43. Waldron, J. (2006), ‘Cosmopolitan norms’, in S. Benhabib (ed.), Another Cosmopolitanism, Oxford: Oxford University Press, pp. 83–101. Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59. Wheeler, N. (2002), Saving Strangers, Oxford: Oxford University Press. Yunker, J.A. (2007), Political Globalization: A New Vision of Federal World Government, Plymouth, MA: University Press of America.

8. Liberal theory Iain Ferguson

This chapter examines the International Relations theory of liberalism in relation to global constitutionalism. It uses the work of G. John Ikenberry, an American professor of International Relations as representative of liberalism. While Ikenberry’s name is synonymous with this theory, as other commentators have suggested, he is far from its only representative in the United States (Betts 2011, Jervis 2021, Peterson and Convey 2019). Ikenberry’s thinking is in line with a ‘worldview’ of American liberal thought (Keohane 2002, Miller 2010). This worldview reaches beyond an Ivy League perspective on the theory of International Relations (IR) and connects directly – as Ikenberry himself has throughout his career (Fioretos 2019) – with the world of international practice and what has been described, in a related context, as the guidance that political theory can and should provide to decision-makers (Laurence 2021). This chapter is in three parts. Section one examines the intellectual background to Ikenberry’s political theory, focusing on what it is that makes it ‘liberal’. Some commentators have suggested this theory is liberal in a way that is typical in American IR, in that it is concerned with a detached or ‘outsider’ view on the instrumental preferences and wants of states in an increasingly institutionalised arena of international politics (Moravcsik 2008). While it is certainly the case that the ever-more institutionalised character of IR is an important aspect of this theory (Schweller 2001, 2019), for interpretive reasons (see Bevir 1999, Bevir and Hall 2020, Hall 2012, Smith 1998, Voegelin 1952/1987), I argue that an ‘outsider’ viewpoint provides very little insight into why this aspect is important. Furthermore, I contend that it is only by adopting an ‘insider’ view on this theory that it becomes possible to fathom a ‘liberal’ answer to a central research question of this Handbook (see Chapter 1), namely: Can the most powerful actors in today’s world be bound by constitutional principles, or do the constitutional principles that exist in international practice provide insufficient restraints on power in global governance? As we shall see, this is broadly the question that has informed Ikenberry’s ‘liberal’ theorising from the mid 1990s to the present. Rather than take a detached, ‘outsider’ view on what this theorising is all about, this chapter follows Ikenberry on his intellectual journey in search of an answer to this question. As I hope to make plain, Ikenberry’s inquiries into events of ‘binding power’ (see Chapter 1) have not only defined the general moves in his political theorising about state power and institutions in international history, they have also revealed a dilemma about his claims concerning the need for ‘more liberalism’ (Ikenberry 2013, p. 92) as a means to restraining the global power of one state in particular, the United States (US), in the twenty-first century. As I discuss in section two, this dilemma illuminates a practice of constitutionalism that is inherently normative and instrumental, state-bound and incomplete. The aim of this practice is to achieve a lasting basis for postwar order, initially through a commitment to ‘strategic restraint’ and more recently through a commitment to ‘liberal rules’ in the partnerships of the great powers of the day (Ikenberry 2001, 2011; Reus-Smit 2013, Schweller 2019). For reasons that I come to in section three, the reconciliation of these practical goals of constitutionalism 101

102  Handbook on global constitutionalism has not been possible in this liberal theory. I explain how and why this is the case in the context of the recognition of a protracted ‘crisis’ of international order since 2002 (Ikenberry 2002, 2004, 2005, 2008, 2009, 2011, 2013, 2018, 2020, 2021). In the conclusion, I reflect on the potentially interminable condition of ‘crisis’ in the discourse and worldview of this liberal theory and the challenge this raises for understanding the weakness of the restraints of ‘state-constitutionalism’ (Walker 2008, pp. 521–2). What an understanding of this condition reveals, I argue, is the reason why these restraints are weak: to wit, they are contingent on the belief that an ‘enlightened’ global power (Ikenberry 2011, p. 298) can be the catalyst for the restoration of order in the international system of global governance at the precise moment when this order is in danger of collapsing (Ikenberry 2011, 2013, 2018, 2020; Mazower 2012). The discourse that defines this ‘crisis’ is, I conclude, no reason for despair when it comes to the theory of global constitutionalism. But it does encourage scepticism about the ideological origins and practical limits of the desire to establish ‘rules-based’ constraints on the US and other powers in global governance.

UNDERSTANDING LIBERAL THEORY What may now be meant by the word ‘liberal’ is anyone’s guess. (Michael Oakeshott 1962/1991, pp. 439–40)

There is a debate that begins in the US in the 1970s and centres around John Rawls’s Theory of Justice about what distinguishes a normative type of political theory known as ‘ideal theory’ from its ‘non-ideal’ other (Rawls 1971/1999, pp. 8 and 215). As with so many debates on theory that employ binary distinctions, this one has been the subject of a great deal of disagreement about what this distinction actually means. But in spite of this, there is something approaching a consensus emerging that the best kind of normative political theory is predicated on practical reasoning and judgement about the favourable – ideal – and unfavourable – non-ideal – conditions of politics in which rights might be met, or, as is the focus here, power might be restrained. Understood in these normative and practical terms, political theorists are ‘agents of change’ (Laurence 2021) who address the goings on in society in a way that encourages them to act as public intellectuals, writing about the concerns that professional political actors face and providing guides for thinking through – and, ideally, ameliorating or resolving – the problems of the day. Accordingly, the ideal element in political theory is not left floating free to dream up a better world, nor is it abandoned. Rather, this ideal and normative aspect of political theory is put to use in society, rationally analysing and proffering remedies for non-ideal, empirical circumstances of politics through essays, books, perhaps even through social media, journalism and policy briefings. I say this is an emerging consensus about the task of political theory, and that may well be an overstatement; even with regards to the country where this debate began, i.e., the US. However, it does help to explain the basic starting points for understanding the political theory and associated worldview addressed in this chapter.

Liberal theory  103 Between a Theory of IR and Belief in Wartime Wartime is not an exception to normal peacetime [in the US], but an enduring condition. (Mary Dudziak 2012, p. 4)

Given the policy roles in government he held early in his career and his subsequent affiliation with several Washington-based think tanks (Fioretos 2019), it seems reasonable to suggest that Ikenberry would not challenge the notion that IR theory1 has little value unless it directly addresses the non-ideal or ‘real-world’ concerns of policy-makers. Nor, indeed, would most of his contemporaries in IR departments in the American academy. This includes most, if not all,2 of the realist theorists of IR who are Ikenberry’s strongest critics (c.f. Allison 2018, Mearsheimer 2018, 2019; Schweller 2001, 2019). It would be a stretch to say this understanding of the affinity between IR theory and the world of policy-making is directly influenced by Rawls’ Theory of Justice. However, as a disposition to thinking about the task of theory and the role of the theorist in political society, it shares presuppositions (Skagestad 2020) in an intellectual outlook of rationalism that is present in Rawlsian liberalism and in the discourse of American political thought more broadly (Steinberger 2015, pp. 1–61). This aspect of political thought has, among other things, become bound up with reflecting on the founding documents of the republic, the Declaration of Independence and the Constitution, and the unifying purpose these serve in the political and legal imagination of the state (Corey 2015, Kahn 2019, Steinberger 2009). This way of conceiving of the unifying purpose of these founding texts has been directly implicated in legitimising an expansion of executive power and reinforcing the US national security infrastructure (Rana 2015). Clearly, this is a counterintuitive logic of constitutionalism. After all, the conventional wisdom – and indeed the sceptical wisdom of constitutional loyalty advocated by the Founding Fathers (Corey 2015, Smith 2021) – is these founding texts ought to put procedural checks and balances on the power of government. However, this rationalist disposition of thought within American political culture (Miller 2010) has fostered an un-sceptical reverence of ideas of constitutional patriotism (Smith 2021) which has, in turn, served to buttress practices of policy-making and legislation that have seen those checks and balances repeatedly contested and transgressed in the period since the National Security Act was signed in 1947 (Rana 2015). These episodes in American history have been publicly justified by a political discourse that is the product of myths of war – the ‘Cold War’ and the ‘War on Terror’ – and accompanying beliefs about the threat to the survival of the republic and its founding principles that certain politicians and members of the intellectual elite hold dear (Dudziak 2013, Honig 2009, Miller 2010, Rana 2015). What I look to do in this chapter is examine the ways in which John Ikenberry’s liberal theory connects with this rationalist background of ‘normative belief’ (Gregory 2021) in American political society in ways that strive to transcend the non-ideal condition I have just described. Although this is self-evidently more than an ideal theory for the US, and this state alone, the constitutional loyalty that informs this theory means that regardless of how inclusive

1 Itself a form of political theory (Rengger 2000) in which the leading authorities have been – and some would say still are – US-based intellectuals (Hoffman 1977, Walt 2011). 2 Of these names listed here, Randall Schweller, may be considered the exception for reasons to do with his reflections on the logic of grand strategy, see Drezner et al (2020).

104  Handbook on global constitutionalism and international it purports to be, non-ideal circumstances in America are never far from consideration. The Postwar Ideal of Interdependence: The Progressive Aspect to a Liberal Theory What is distinctively American and international in Ikenberry’s liberal theory can be understood with respect to its ‘progressive aspect’ (Stout 2018) and the ways in which this is disclosed through reflections on what he terms ‘constitutional politics’ in IR (Ikenberry 1998). As I will elaborate on in more detail below, this way of theorising about constitutionalism beyond the borders of the US has always been self-consciously ‘liberal’, and has kept true to its reference points in American liberal thought of the 1970s. But it also, from the outset, sought to move beyond these beginnings, to establish a position that remains liberal, but in novel way that issues from conscious efforts to respond to criticisms of the IR school or paradigm that it is most associated with, and to the empirical circumstances of war that interest Ikenberry. His most obvious intellectual debt is not to Rawls’s Theory of Justice, but another seminal work of political theory, with a specific emphasis on IR, Robert Keohane and Joesph Nye’s Power and Interdependence. This book from 1977 – currently in its fourth edition – is a landmark text in what is known as ‘neo-liberal institutionalism’ or, simply, liberal IR theory. It advances an argument that places the rationality of bargaining and coordination in a world of states to the end of supporting the transnational, or state plus, ‘institutionalisation’ of politics that surpasses the basic security guarantees of wartime balances of power in international affairs. The progressive character of this account of IR is explicit in its claim about the overall, postwar direction of institutional change in world politics. This trajectory of change is readily understood, today, as the basic ‘liberal’ argument in IR theory about transition in world politics. Keohane and Nye’s main claim is that interdependence has an overall purpose that is conducive to the harmonisation of interests, the planning of cooperation, and, ultimately, the reduction of the propensity to war in the international system. In a more globalised world, with greater interlinkages in the economy and in other policy spheres, the reasoning goes that the use of military force will bring diminishing returns and higher costs for all the powers in the international system, state and non-state alike. The liberal theorising in Power and Interdependence looks to events in the past to identify the trend towards peaceful change in the international system of the present and the future. This trend can be understood as a disposition in policy-making in which the recourse to war among interlinked powers is viewed as increasingly irrational as their relationships become more densely institutionalised and entangled. As Joseph Nye (2004) put it in his single-authored, most famous work, Soft Power, according to this liberal worldview, decision-makers will seek to harness the power that exists between them in the service of ‘win–win’ negotiations and settlements. Accordingly, the resort to the use of military force will be viewed by these practitioners as a ‘lose–lose’ scenario, a decision to project power that is bound to introduce discord and instability into international politics that nobody wants. This liberal theorising and its central claim about progress in international politics has its critics, of course. Realist theorists have long accused this liberal argument of wishing away the dark side of great power politics and the competition and anarchy that they argue defines the international system (Allison 2018, Mearsheimer 2018, 2019; Schweller 2001). Historians have raised doubts about whether greater interdependence since 1945 is, actually, the source

Liberal theory  105 of the peaceful change in international politics that this worldview presupposes, or whether it is simply a good way of understanding and explaining what makes the Cold War a distinctive form of international conflict. According to these historians, the institutionalised character of this conflict may be explained from a standpoint that examines the character of the crisis-prone relationships between the US and its allies in the twentieth century (Ashton 2002), and also the character of the ‘new Cold War’ rivalry that has escalated between the US and China in the last few years in spite of the economic interlinkages between these latter-day great powers and permanent partners in the Security Council (Ferguson 2020). These past and present ‘Cold War style’ situations of interdependence do not necessarily mean that conflicts in an age of globalisation are going to be ‘lose–lose’ scenarios for those powers directly involved, or that they will result in a full-blown war. But it does mean that the expectations of Keohane and Nye that a collective harmony of interests will trump the use of force and transcend conflicts between powers in the UN system requires, at the very least, a corrective. John Ikenberry has, in part, provided this corrective with his own version of liberal IR theory. And he has done so in ways that incorporate state-centred realism (Ikenberry 2010) into the progressive aspect of interdependence,3 and take a longer view on international history than Keohane and Nye to account for the origins of postwar orders in-between major powers in the nineteenth, twentieth and twenty-first centuries (Ikenberry 2001, 2011, 2020). In the next sections of this chapter, I will explain what these progressive innovations in liberal IR theory entail and why they matter with respect to the constitutional question of how power(s) have been and might be restrained.

EVENTS OF INTERNATIONAL ‘CONSTITUTIONAL POLITICS’ Every man’s reading of past events comes to acquire, in the course of time, a certain conceptual structure. It is not a structure he merely invents and imposes upon the course of events, but one which he believes himself to have elicited from his study of events and which he uses to keep his thoughts in order. (Michael Oakeshott 1993, p. 3)

In his earliest article on the origins of what he referred to as the ‘real international order’, Ikenberry (1996, p. 79) challenged the conventional wisdom that the order constituted at the end of the Cold War marked a clean break with what emerged at the end of World War II. On the contrary, he argued, continuities with the settlement of 1990 and 1945 and, indeed, earlier postwar settlements, were more apparent than significant historic changes occasioned by the process of globalisation. But this left open the question of how to square his own liberal assumption of the progressive change in international politics with this empirical observation about the continuity between postwar orders. Ikenberry’s reflections on this empirical puzzle would shape his entire worldview on the practice and the dilemma of ‘constitutional politics’ in IR.

In a manner that is not necessarily at odds with ‘classical’ realism in the United States, even if it does not sit well with the tenets of ‘structural’ realism, which are the points of reference of Ikenberry’s strongest critics (Scheuerman 2011). 3

106  Handbook on global constitutionalism The answer that he came up with is that the differences between postwar orders going back as far as 1815 (Ikenberry 2001) arise because of a tension between equally progressive, yet substantively different, constitutional foundations that are desired in the negotiation of these settlements of interdependence in history (Ikenberry 1996, 1998, 2001, 2011). The politics and practice of international constitutionalism is, accordingly, characterised by a search for ‘institutionalised settlement’ (Ikenberry 2001, pp. 22–4) that is sustainable, but not permanent. Contractual agreement of this kind is the goal of ‘order–building’ after major wars (Ikenberry 2001, pp. 18–40). The search for this goal is the progressive aspect that runs through Ikenberry’s explanation of the events of consensus that are achieved and sustained in-between ‘major powers’ in spite of persistent disagreements and conflicts in the international system. However, it is important to note these are fungible achievements of order, historically contingent up to a point of major war, when the order-building process of ‘constitutional politics’ begins all over again. In-between Events of Consensus: The Foundations of Order in ‘Constitutional Politics’ Ikenberry has been credited with developing a liberal theory of IR that ‘organises anarchy’ (Schweller 2019). And this is how he does it, through the explanation of events of consensus in international politics that exhibit constitutional characteristics that are more substantive than the balance-of-power politics that realists, like Schweller, emphasise as being the extent of the order that can exist in history (Rengger 2000, pp. 37–70). Ikenberry’s thicker conception of order in history requires the identification of the sources of stability in-between powers. His identification of these foundations of order arises through an explanatory narrative about the postwar efforts by hegemons, from Britain in 1815 to the US in 1945 and 1990, to establish institutionally binding arrangements of political association that impose a victor’s peace. This account of the origins of order has substantive commonalities with the English School theory of international society, which also emphasises events of peacemaking (see Clark 2001, 2005; also Costa-Buranelli, Chapter 12 in this Handbook). What Ikenberry’s theory shares with this societal theory of IR is a focus on binding settlements that are – or, at least, are believed to be – legitimate because they are not the outcome of unmediated coercion or shallow compromise, but of the ‘common interest’ articulated in a foedus or pact in which each associate in a postwar settlement pledges their allegiance to the raison de système rather than the narrow and individual state interests of raison d’etat (Watson 1992, p. 14). This is by no means a sanitised view of IR. Hierarchy and power feature prominently in the instrumental rationality of ‘constitutional politics’. But they do so not through the mere unilateral imposition of the collective will of one particular state, or self-interested balancing against or band-wagoning of other states in relations with the prevailing hegemon. This is where the common end of ‘order-building’ does so much work in Ikenberry’s theory. Order-building understood in terms of the instrumental rationality of institutionalised settlement, or consensus, accounts for events of partnership in-between the great powers of the day, but also of the discontinuity and rupture in their partnership as one foundational and common purpose of interstate order of ‘constitutional politics’ gives way to another in the aftermath of a major war that none of the states bound by this order (fully) anticipated.

Liberal theory  107 Constitutional Foundation of Victor’s Peace: The Politics of ‘Strategic Restraint’ In the first instance, consensus serves as a foundation of an interstate settlement that is arrived at through negotiations led by the principal ‘victor’ in a major war by way of a practice of political association that implicates all of the great powers, and many of the lesser powers too, in the rebuilding of international order. According to this logic of international constitutionalism, a hegemonic state acts in the common interests of international peace and security to lay down ‘rules, rights, and protections’ that go on to become ‘widely agreed upon, highly institutionalized, and generally observed’ (Ikenberry 2001: 36) principles of the not-altogether-new international order, initially within a small club of major powers and subsequently within the broader international system of states. In ways that will become more apparent as we proceed, Ikenberry has always taken something akin to ‘institutional mechanisms of strategy’ (Ikenberry 2001: 4) as an important explanatory factor in accounting for the achievement of victor’s peace. These ‘mechanisms of strategy’ are understood as intentions of statecraft and by extension a practice of policymaking that is orchestrated by ‘leading states’ and aims to ‘“lock in” a favourable and durable postwar order’ (ibid). The plan of this interstate practice of policy-making is to constitute a common, international condition for a ‘strategic restraint’ that is not just favourable to the hegemonic architect of the peace. This ideal condition of constitutionalism is also understood to be a favourable basis for ‘the ‘governing’ arrangements among a group of states who can recognise the benefits that come from guaranteeing their own sovereignty in this postwar pact. As with other societal theories of international constitutionalism – from English School theorists in particular – there is a presumption that beneath the alignment of the ‘common interests’ between states there are constitutional principles of international legitimacy at work that account for common political obligations not just to the system, or to a victor’s peace, but to a normative belief in the ‘common values’ that underpin both. This is what Hedley Bull terms the ‘morally prior’ (1977/2002, p. 21) understanding of world order that is constitutive of international order. The subtle reality to this argument is that international order has intrinsic and shared value for what Bull calls ‘social life’ as a whole (1977/2002, p. 3). Ikenberry does not use this (neo-Hegelian) language of the English School, but he implies something similar to the understanding of essential and normative facts of social life in ‘hegemonic cultural values’ and ‘fundamental regulative practices’ (Donnelly 2011, pp. 166–7) in his description of the postwar binding of constitutional settlements. This cultural belief in hegemony is a sub-strategic and fundamental ideal in Ikenberry’s liberal theory. While he does not give it the kind of expression that English School theorists do, it is there at the ontological basis of this theory. And it is there in the progressive aspect to the binding features of ‘constitutional politics’. This belief in the international legitimacy, or right conduct, of hegemony accounts for why settlements of victor’s peace promise more than just an expedient restraint on the most powerful states in history. This belief alludes to a deeper constitutional foundation of political association than the instrumental language of ‘strategic restraint’ and ‘“locking in” durable postwar order’ suggests. At root – and as with the English School theory to which it has been compared (Reus-Smit 2013) – Ikenberry’s liberal theory of ‘constitutional politics’ is guided by normative belief in the value(s) of order itself. How he comes to understand the substance of this value of order, of this principle of ‘constitutional politics’ is crucial for explaining a change in this liberal theory

108  Handbook on global constitutionalism that has unfolded over the last 20 years; a change that I have trailed from the beginning of this chapter, an unanticipated change from his perspective that is contingent on the non-ideal circumstances of a major war. Constitutional Foundation After Victory? The Politics of ‘Liberal Rules’ Ikenberry has never concealed his ‘liberal’ identity as a theorist of IR. But the values-based and normatively liberal character to his theorising about international constitutionalism have – for reasons that I will elaborate on more in the next section – only really come to light in the period since the publication of his first book After Victory in mid 2001. As a precis for a more detailed discussion of this enterprise of political theorising in the years since the US-led military response to the terror attacks of that year, let me briefly outline what it is that provides the unifying and substantive basis of institutionalised settlement to what Ikenberry comes to describe unequivocally and unreservedly as a liberal international order. This is a conception of international order that is ‘open and loosely rule based’ and provides ‘a foundation in which states can engage in reciprocity and institutionalised cooperation’ (Ikenberry 2011, p. 18). While there are extensive references to images of the past to provide support for his argument that this constitutional foundation of societal reciprocity is there to be rediscovered and can be a workable model for cooperation in today’s age of global governance, this argument rests on not much more than the conviction that the ‘liberal rules’ (Ikenberry 2011, p. 347; 2020, p. 303) he claims were ‘widely accepted’ before in international history can and will be ‘widely accepted’ again, though US leadership. Ikenberry’s conviction wavers at times. There is an unmistakable nervousness and uncertainty to his theorising about the postwar order that he argues is in the process of being built in the twenty-first century. Will this political order ever be finished? Or even worse, will it collapse as the hegemonic power that is required in this order-building enterprise acts in ways that are contrary to its foundation in ‘liberal rules’?

THE ‘CRISIS’/CONSTITUTIONALISM OF LIBERAL INTERNATIONALISM The international order built and led by the United States and its partners is in crisis. (John Ikenberry 2018, p. 17)

There is a debate in IR literature about what is meant by all the talk of ‘crisis’ with regards to the contemporary order, and whether this denotes a deep and underlying instability in international political thought and practice or whether this is simply a rhetoric of affect; the articulation of anxiety in the face of loss or destruction in the institutional edifice of global governance that is merely a perception of change (Eilstrup-Sangiovanni and Hoffman 2020). The way I approach this interpretive question in this section is to suggest that these understandings of the ‘crisis’ of order are not mutually exclusive. What is perceived to be a change in the international order of global governance can also be what is understood to be real and true about the unstable flux in international politics. Both conceptions of ‘crisis’ are integrated here through the study of agency-centred belief, in this case Ikenberry’s belief, about an event that challenges and affirms convictions about what he – and, it would appear, other theorists

Liberal theory  109 and practitioners of international community, too (Walt 2021) – regard as the rules-based foundation of the contemporary international order. The key point here is that what Ikenberry argues is the underlying and unifying foundation of order comes to him through positing his belief in the substance of ‘liberal rules’; a belief that identifies the source of stability in IR beneath and beyond a driver of radical change that he opposes. The driver or instigator of this radical change is the formulation and implementation of US grand strategy under George Bush Jr. (Ikenberry 2002). Ikenberry’s principled opposition to this grand strategy of the Bush administration accounts for a double-sided event in the reformulation of his liberal theory. One side of this event explains the impetus for the enterprise of building a ‘liberal rules’-based order in the twenty-first century; the other why this enterprise is predicated on an understanding of how this Bush-era grand strategy effectively ended the international order of ‘strategic restraint’ as a workable model for the post-Cold War era, and introduced a new disorder, a new anarchy into international politics. The way that Ikenberry looks to ‘organise anarchy’ in this occasion appeals to a reciprocally binding and progressive ideology (Holbraad 2003, pp. 39–66) of liberal internationalism (Ikenberry 2011, 2020) and the intuition that a commitment to this ideology can re-constitute partnership between the US and other powers through a consensus that will be more stable, more explicitly rule-governed – in every conceivable sense, a stronger constitutional foundation than the axiom of ‘strategic restraint’ that it will, eventually, possibly, come to replace. Crisis of ‘Neo-Imperial’ Grand Strategy: The Belief in the Disorder of Neo–conservativism In the shadows of the Bush administration’s war on terrorism, sweeping new ideas are circulating about U.S. grand strategy … They call for American unilateral and preemptive, even preventative use of force … ultimately unconstrained by the rules and norms of international community. At the extreme these … radical strategic ideas and impulses … form a neo-imperial vision in which the United States arrogates to itself the global role of setting standards, determining threats, using force, and meting out justice. (John Ikenberry, 2002, p. 44, emphasis added)

The best way into understanding how Ikenberry conceives of the improvement on the constitutional foundation of ‘strategic restraint’ is to begin with what he objects to about the 2002 National Security Strategy of the Bush administration. ‘Preemption’ was the idea at the core of this strategy (Rengger 2013, pp. 18–24). This controversial idea legitimated the US to launch military attacks on what American and allied intelligence sources claimed were the bases of international terrorism around the world. Rarely has Ikenberry expressed his disapproval of these ‘radical strategic ideas and impulses’ or their ‘neo-imperial’ character as forcefully as he did in the quote cited above. But his criticism of this US grand strategy and its knock-on effects for America’s standing in the world has reappeared in several of his publications since (Betts 2011, Ikenberry 2004, 2005, 2008, 2009, 2011, 2020; Porter 2018). This criticism takes the form of a liberal aversion or resistance to the ‘unconstrained’ (Ikenberry 2002, p. 44) character of this security strategy and the licence it gives the US to use its historically ‘unprecedented global dominance’ (ibid.) in ways that undermine the ‘governing arrangements’ that administrations prior to Bush Jr. had sought to negotiate and maintain. There is a question about the ideological origins of this 2002 strategy that Ikenberry does not address with the subtlety it perhaps deserves (Caverly 2013), namely, the extent to which

110  Handbook on global constitutionalism its ‘neo-conservativism’ is just as much a product of a homegrown belief in the ‘emergency politics’ (Honig 2009) of rationalism as Ikenberry’s internationalist alternative. The idea that the thinking behind the Bush doctrine and its ‘liberal’ nemesis are products of the same rationalist matrix of belief and value is certainly not one that Ikenberry or like-minded critics of the Bush administration share (see Ikenberry 2008). According to them there is a clear ideological dividing line between American neo-conservativism and a ‘tradition’ of liberal internationalism that was made an authoritative and alternative foundation for grand strategy by another US President, Woodrow Wilson, in the event of America’s entry into World War I, 30 years before the National Security Act was signed. This appeal to an alternative ideological basis for US national security strategy, or simply, grand strategy has been referred to, perceptively, as Ikenberry’s anticipation of the ‘Obama moment’ (Peterson and Convey 2019), the turn against the Bush doctrine of ‘preemption’ and the foreswearing of the ‘war on terror’ under Bush Jr.’s successor to the Whitehouse. He and other like-minded American academics were signalling this liberal internationalist change in policy-making months, if not years, before it began in practice. And at the time of writing, with Obama’s former deputy, Joe Biden, in the Whitehouse, there is good reason to agree with Ikenberry (2011, 2018, 2020) that this may be a long-term, US-led change in global governance and not just a passing ‘moment’. Constitutionalism of ‘Enlightened’ Grand Strategy: The Belief in the Order of Liberal Internationalism The crisis of liberalism today will ultimately bring forth ‘more liberalism’. This is true if by liberal order we mean an open, rule-based relations system organised around expanding forms of institutionalised cooperation … The future still belongs to the liberal international order. (John Ikenberry, 2013, p. 92, emphasis added)

The ‘future’ may well ‘belong’ to this belief in America’s global leadership as Ikenberry suggests, but this was not a ‘future’ that he envisaged when he was writing about the constitutional foundations of international order prior to 2002. What has changed in his perspective? What explains how he has come to imagine the foundation of international order differently? The clue lies with the pregnant phrase ‘more liberalism’ (Ikenberry 2013, p. 92). Ikenberry has become more committed to what he means by ‘liberalism’. And as discussed earlier in this chapter, this commitment is grounded in rationalism in American political culture, an understanding of the responsibilities of the political theorist to deal with non-ideal circumstances in wartime, and an understanding of the rational way that hegemons use strategic means to impose and maintain a normative foundation for constitutional order in IR. All of these instrumental and normative aspects to Ikenberry’s political theory remain largely unchanged. Where the significant change arises is with respect to his understanding of what it means to be a ‘liberal’ theorist in circumstances of war in the period since After Victory was published. His response to this ‘non-ideal’ circumstance has seen him become more openly ideological in his ‘liberal’ identity. This can be understood in the way his theorising is mediated by language symbols (see Voegelin 1970/1990). He no longer writes simply about the ‘rules’ of international order as he did in that book (Ikenberry 2001) but ‘liberal rules’ (Ikenberry 2011, 2020), no longer of ‘mechanisms of strategy’ (Ikenberry 2001) but of ‘enlightened’ grand strategy (Ikenberry 2020, pp. 304–11) and not just about the political association of ‘major

Liberal theory  111 powers’ (Ikenberry 2001) but about the political association with the US’s ‘global power’ (Ikenberry 2005). These ‘new’ language symbols have introduced a strength of conviction into Ikenberry’s ‘liberal’ theory that was not there before. And it is this conviction that leads him to believe in the promise and the possibility of the building of an international order in and for global governance that will bind power(s) more deeply, more securely than ‘strategic restraint’ ever did. He may well be proved right. This might be the long-term outcome of US grand strategy in the twenty-first century. But, in any case, the postwar order that he describes is not yet a political reality. Rather it is the vision of a practice of international constitutionalism, led by the US, guided by a strategy that is committed to principles of liberal internationalism, some of which Ikenberry has articulated, but most of which are only intimated in language symbols that are in many respects beholden to the ‘crisis’ that he, and others, perceive as standing in the way of this vision becoming a political reality. As he has recently admitted, there is some way to go in reconciling the two foundational aspects of this vision: on the one hand, the role of the US as a ‘restrained, humble’ and enlightened global power, acting in concert with its partners for the rebuilding of order, and on the other, the ‘restless, expansionist force’ to the perfection of liberal internationalism and the spectre this raises of a new American imperialism (Ikenberry 2021).

CONCLUSION The meaning that is provided to what is ‘liberal’ in the political theory of IR and constitutionalism is, I have argued here, a moving target that is mediated by symbols that place an emphasis on events of power and interdependence in the search for postwar order that is both beyond the US and beholden to this state or, in earlier times, to its imperial predecessor, Great Britain. For readers of the Handbook, the challenge this raises is how to engage with such a state-bound journey in theorising, how to reason with and respond to this liberal theory from a standpoint that is also sensitive to real-world goings on in IR especially in a time, our time, of seemingly endless war. There are two contrasting ethical-political standpoints (see Rengger 2017, Smith 1998, White 1991) that global constitutionalists might adopt in response to the evolving character of this liberal theory. Perhaps the most established of the two, from an IR perspective, is the ethical position adopted by the constructivist theorist, Richard Price (2008). Price maintains that the kind of interests that define the ‘crisis’ of this liberal theory are, by definition, unethical, because ethical thought can only be disinterested thought about the world. The trouble with this neo-Kantian argument is it makes an empirical assumption that this chapter finds to be demonstrably untrue. Ikenberry has gone to considerable lengths in his theorising to defend the ethical grounds of ‘institutionalised settlement’ and the requirement of foresight in strategic thought to establish what he identifies as constitutional foundations of postwar order. This might not be a discourse of ethics that Richard Price or other political theorists of IR or constitutionalism are ready to accept. But this does mean that the understanding of constitutional settlements predicated on a victor’s peace of ‘strategic restraint’ or a progressive ideology of ‘liberal rules’ is thereby unethical. Nor does it mean that the ‘crisis’ that accompanies the violent break between one constitutional foundation and the search for the other is

112  Handbook on global constitutionalism unethical either. The striving for each foundation can be understood as an attempt to establish, or constitute, a system of ethical life beyond war itself (see Frost 1996). The second, more complex position begins from this neo-Hegelian, ‘social ontology of recognition’ (Ikaheimo and Laitinen 2011). To recognise the considered yet inconclusive search for the ethical beginnings of ‘durable post-war order’ (Ikenberry 2001) by one of the most esteemed theorists of IR of his generation means to acknowledge that the ‘crisis’ and the rebuilding of order that he describes as being in process since 2002 reveals a paradox in a state-bound experience of war. This paradox is the inability to ‘organise anarchy’ (Schweller 2019) – or as Ikenberry prefers to call it, ‘master modernity’ (2020, pp. 286–312) – through the appeal to the intrinsic value of a rules-based international order. Indeed, I would go a step further. The recognition of this paradox provides a penetrating insight into a dilemma of political order in global governance; a dilemma brought to light by a US-centred way of thinking about ‘constitutional politics’ that, thus far, has been unable to figure out a coherent answer to its own practical question about the political reality of this order: are its ‘liberal rules’ the foundation for the restraint of power in global governance or does this foundation (re)legitimise American imperialism and perpetuate a non-ideal condition of disorder between one global power and the others.

REFERENCES Allison, G. (2018), ‘The myth of the liberal order: From historical accident to conventional wisdom’, Foreign Affairs, 97 (4), 124–33. Ashton, N.J. (2002), Kennedy, Macmillan and the Cold War: The Irony of Interdependence, London: Palgrave Macmillan. Betts, R.K (2011), ‘Institutional imperialism’, The National Interest, 113, 85–96. Bevir, M. (1999), The Logic of the History of Ideas, Cambridge: Cambridge University Press. Bevir, M. and I. Hall (2020) ‘The English School and the classical approach: Between modernism and interpretivism’, Journal of International Political Theory, 16 (2), 153–70. Bull, H. (1977/2002), The Anarchical Society: A Study of Order in World Politics, 3rd edition, New York: Columbia University Press. Caverly, J.D. (2013), ‘Neoconservatism, Neoclassical Realism, and the narcissism of small differences’, in R. Friedman, K. Oskanian and R.P. Pardo (eds), After Liberalism? The Future of Liberalism in International Relations, London: Palgrave Macmillan, pp. 145–66. Corey, E. (2015), ‘Rationalism and the rule of law: Michael Oakeshott and the American constitutional order’, American Political Thought, 4 (4), 632–52. Clark, I. (2001), The Post-Cold War Order: The Spoils of Peace, Oxford: Oxford University Press. Clark, I. (2005), Legitimacy in International Society, Oxford: Oxford University Press. Donnelly, J. (2011), ‘The differentiation of international societies: An approach to structural international theory’, European Journal of International Relations, 18 (1), 151–76. Drezner, D.W., R.R. Krebs, and R. Schweller (2020), ‘The end of grand strategy: America must think small’, Foreign Affairs, 99 (3), 107–17. Dudziak, M.L. (2013), War Time: An Idea, Its History, Its Consequences, Oxford: Oxford University Press, p. 4. Eilstrup-Sangiovanni M. and S.C. Hofmann (2020), ‘Of the contemporary global order, crisis, and change’, Journal of European Public Policy, 27 (7), 1077–89. Ferguson, N. (2020), ‘Cold War II’, National Review, 17 December. Fioretos, O.K. (2019), ‘The syncopated history of the liberal international order’, The British Journal of Politics and International Relations, 21 (1), 20–8. Frost, M. (1996), Ethics in International Relations: A Constitutive Theory, Cambridge: Cambridge University Press.

Liberal theory  113 Gregory, A. (2021), Desire as Belief: A Study of Desire, Motivation, and Rationality, Oxford: Oxford University Press. Hall, I. (2012), Dilemmas of Decline: British Intellectuals and World Politics, 1945–1975, Berkley: University of California Press. Hoffman, S. (1977), ‘An American social science: International Relations’, Daedalus, 106 (3), 41–60. Holbraad, C. (2003), Internationalism and Nationalism in European Political Thought, London: Palgrave Macmillan Honig, B. (2009), Emergency Politics: Paradox, Law, Democracy, Princeton, NJ: Princeton University Press. Ikaheimo, H. and A. Laitinen (2011), Recognition and Social Ontology, Leiden: Brill. Ikenberry, J.G. (1996), ‘The myth of post-Cold War chaos’, Foreign Affairs, 81 (5), 44–60. Ikenberry, J.G. (1998), ‘Constitutional politics in international relations’, European Journal of International Relations, 4 (2), 147–77. Ikenberry, J.G. (2001), After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars, Princeton, NJ: Princeton University Press. Ikenberry, J.G. (2002), ‘America’s imperial ambition’, Foreign Affairs, 81 (5), 44. Ikenberry, J.G. (2004), ‘Liberalism and empire: Logics of order in the American unipolar age’, Review of International Studies, 30 (4), 609–30. Ikenberry, J.G. (2005), ‘Power and liberal order: America’s postwar world order in transition’, International Relations of the Asia-Pacific, 5 (2), 133–52. Ikenberry, J.G. (2008), ‘Woodrow Wilson, the Bush administration, and the future of liberal internationalism’ in J.G. Ikenberry, T.J. Knock, A. Slaughter and T. Smith (eds), The Crisis of American Foreign Policy: Wilsonianism in the Twenty-first Century, Princeton, NJ: Princeton University Press. pp. 1–24. Ikenberry, J.G. (2009), ‘Liberal internationalism 3.0: America and the dilemma of liberal world order’, Perspectives on Politics, 7 (1), 71–87. Ikenberry, J.G. (2010), ‘Liberalism in a realist world: International relations as an American scholarly tradition’, International Studies, 46 (1), 203–19. Ikenberry, J.G. (2011), Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order, Princeton, NJ: Princeton University Press, p. 92. Ikenberry, J.G. (2013), ‘Liberal international order and its discontents’, in R. Friedman, K. Oskanian and R.P. Pardo (eds), After Liberalism? The Future of Liberalism in International Relations, London: Palgrave Macmillan, pp. 91–102. Ikenberry, J.G. (2018), ‘Why the liberal world order will survive’, Ethics & International Affairs. 32 (1), 17. Ikenberry, J.G. (2019), ‘Reflections on After Victory’, The British Journal of Politics and International Relations, 21 (1), 5–19. Ikenberry, J.G. (2020), A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order, Princeton, NJ: Princeton University Press. Ikenberry, J.G. (2021), ‘Response’, in T. Maddux and D. Labrosse (eds), H-Diplo Roundtable: A World Safe for Democracy: Liberal Internationalism and The Crises of Global Order, available at: https://​ hdiplo​.org/​to/​RT23​-3 [accessed 1 July 2022]. Jervis, R. (2021), ‘Introduction’, in T. Maddux and D. Labrosse (eds), H-Diplo Roundtable: A World Safe for Democracy: Liberal Internationalism and The Crises of Global Order, available at: https://​ hdiplo​.org/​to/​RT23​-3 [accessed 1 July 2022]. Kahn, P.W. (2019), Origins of Order: Project and System in the American Legal Imagination, New Haven, CT: Yale University Press. Keohane, R. (2002), ‘The globalization of informal violence, theories of world politics, and the “liberalism of fear”’, Dialogue IO, 1 (1), 29–43. Keohane, R. and J. Nye (1977/2011), Power and Interdependence, 4th edition, London: Pearson. Laurence, B. (2021), Agents of Change: Political Philosophy in Practice, Boston, MA: Harvard University Press. Mazower, M. (2012), Governing the World: The History of an Idea, London: Penguin Press. Mearsheimer, J.J. (2018), The Great Delusion: Liberal Dreams and International Realities, New Haven, CT: Yale University Press.

114  Handbook on global constitutionalism Mearsheimer, J.J. (2019), ‘Bound to fail: The rise and fall of the liberal international order’, International Security, 43 (4), 7–50. Miller, R.B. (2010), Terror, Religion, and Liberal Thought, New York: Columbia University Press. Moravcsik, A. (2008), ‘The new liberalism’, in C. Reus-Smit and D. Snidal (eds), The Oxford Handbook of International Relations, Oxford: Oxford University press, pp. 234–54. Nye, J.S. (2004), Soft Power: The Means to Success in World Politics, New York, NY: PublicAffairs. Oakeshott, M. (1962/1991), Rationalism in Politics and Other Essays, expanded edition, London: Liberty Fund, pp. 439–40. Oakeshott, M. (1993), Morality and Politics in Modern Europe: The Harvard Lectures, edited by S. Letwin, New Haven, CT: Yale University Press, p. 3. Peterson, J and A. Convey (2019), ‘Breakthrough’ works – revisiting the essentials: a symposium series in the BJPIR’, British Journal of Politics and International Relations, 21 (1), 3–4. Porter, P. (2018), ‘Why America’s grand strategy has not changed: Power, habit, and the U.S. foreign policy establishment’, International Security, 42 (4), 9–46. Price, R. (2008), ‘Moral limit and possibility in world politics’, International Organization, 62 (2), 191–220. Rawls, J. (1971/1999), A Theory of Justice, Oxford: Oxford University Press. Rana, A. (2015), ‘Constitutionalism and the foundations of the security state’, California Law Review, 103 (2), 335–85. Rengger, N.J. (2000), International Relations, Political Theory and the Problem of Order: Beyond International Relations Theory?, London: Routledge. Rengger, N.J. (2013), Just War and International Order: The Uncivil Condition in World Politics, Cambridge: Cambridge University Press. Rengger, N.J. (2017), The Anti-Pelagian Imagination in Political Theory and International Relations: Dealing in Darkness, London: Routledge. Reus-Smit, R. (2013), ‘The liberal international order reconsidered’, in R. Friedman, K. Oskanian and R.P. Pardo (eds), After Liberalism? The Future of Liberalism in International Relations, London: Palgrave Macmillan, pp. 167–86. Schweller, R.L. (2001), ‘The problem of international order revisited: A review essay’, International Security, 26 (1), 161–86. Schweller, R.L. (2019), ‘Organised anarchy: Revisiting G. John Ikenberry’s After Victory’, British Journal of Politics and International Relations, 21 (1), 63–70. Scheuerman, W.E. (2011), The Realist Case for Global Reform, Cambridge: Polity Press. Skagestad, P. (2020), ‘The doctrine of absolute presuppositions’, in Exploring the Philosophy of R.G. Collingwood: From History and Method to Art and Politics, London: Bloomsbury Academic, pp. 131–52. Smith, N.H. (1998), Strong Hermeneutics: Contingency and Moral Identity, London: Routledge. Smith, S.B. (2021), Reclaiming Patriotism in an Age of Extremes, New Haven, CT: Yale University Press. Steinberger, P.J. (2009), The Idea of the State, Cambridge: Cambridge University Press. Steinberger, P.J. (2015), The Politics of Objectivity: An Essay on the Foundations of Political Conflict, Cambridge: Cambridge University Press. Stout, R. (2018), Process, Action, and Experience, Oxford: Oxford University Press, pp. 210–29. Voegelin, E. (1952/1987), The New Science of Politics: An Introduction, Chicago: The University of Chicago Press. Voegelin, E. (1970/1990), ‘Equivalences of experience and symbolization in history’, edited by E. Sandoz, Published Essays: 1966–1985, Baton Rouge: Louisiana State University Press, pp. 115–33. Walker, N. (2008), ‘Taking constitutionalism beyond the state’, Political Studies, 56 (3), 519–43. Walt, S.M. (2011), ‘Is IR still an American social science?’, Foreign Policy, 6 June. Walt, S.M. (2021), ‘China wants a “rules–based international order,” too’, Foreign Policy, 31 March. Watson, A. (1992), The Evolution of International Society: A Comparative Historical Analysis, London: Routledge. White S.K. (1991), Political Theory and Postmodernism, Cambridge: Cambridge University Press.

9. Constructivism and global constitutionalism Jan Wilkens

INTRODUCTION A growing number of phenomena in global politics are being associated with the term global constitutionalism,1 not only within but also, in often more implicit terms, beyond academia. Zooming into practices associated with constitutionalisation, it could be argued that this is a result of a situation in which specifically lawyers, who continue to substantially shape the academic discourse on global constitutionalism, are involved in processes of global constitutionalisation as they are both practitioners and cognitive promoters of the notion at the same time (Peters 2014, p. 134). Hence, they are situated at the nexus of academic knowledge production and social practices in the legal realm, which has a reinforcing effect over time. In this context, David Kennedy describes the contradictory position of international lawyers, especially those from the US and Europe, not only as reproducers of a ‘cosmopolitan dream’, but also as ‘the dark side of law’. He critically states that ‘[o]ne of their projects is to promote the idea that there is “international law” outside their efforts, and that it “governs” sovereign states, and that it is, by and large, a good thing – there should be more of it’ (Kennedy 2007, p. 650, original emphases). Although this will not be the central puzzle here, it highlights a basic issue constructivism has advanced in general and is very useful in order to better grasp the abstract notion of global constitutionalism in particular: it fundamentally problematises what agents perceive as their reality and highlights how actors construct meaning in order to make sense of this social reality through different patterns of knowledge production (Berger and Luckmann 1966[1991]). The differentiation between the existence of a material world that is outside of human volition and the social reality that is reconstituted through knowledge, is a general contention of constructivists based on the sociology of knowledge (Berger and Luckmann 1966[1991], p. 13). Yet, concepts like global constitutionalism, as an explanandum of processes identified as constitutionalisation, often create universal narratives as they claim to be of a global scale.2 Constructivism demands to take sociological perspectives seriously, which implies: that meaningful action (and hence also the knowledge of both agent and observer) is a social or intersubjective phenomenon. It cannot be reduced to cognitive psychology or to choice, based on interests.

1 For the differentiation and definition of the terms ‘global constitutionalism’ and ‘constitutionalisation’, see the Introduction to this Handbook and Wiener (2012). In brief, global constitutionalism describes the academic approach, while constitutionalisation denotes the explanandum of global constitutionalism. 2 Compare Aoife O’Donoghue’s contribution in which she starts her legal analysis of global constitutionalisation stating that ‘constitutional language is employed in specific fashions’ (O’Donoghue 2014, p. 5). Although she critically reviews different concepts, the narratives created by them remain uncontested.

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116  Handbook on global constitutionalism Instead, the sociological turn emphasises the social context within which identities and interest of both actor and acting observer, are formed in the first place. (Guzzini 2000, p. 149)

Critical constructivism3 emphasises the need for reflexivity expressed in the call for a double hermeneutical position (Guzzini 2000, p. 150; Jackson 2006; Hofius et al. 2014, p. 90) problematising the level of observation as well as the intersubjective processes of constructing meanings-in-use within particular contexts (Weldes and Saco 1996, p. 373; Milliken 1999, p. 231; Wiener 2009, p. 176). Global constitutionalism as an ‘academic artefact’ (Weiler 1999, p. 223), like other concepts in social theory, helps to describe social phenomena that are not of physical existence. Yet, this academic endeavour creates meanings with regard to the nature and characteristics of global structures. Regardless of whether or not scholars agree that global constitutionalism is generally a ‘good’ thing because ‘the epistemic and normative benefits prevail’ (Peters 2009, p. 400), it creates a language and images in which a specific reality appears as existent in the first place (Ringmar 1996, p. 450). International law does not only reproduce states as central actors by itself, but concepts such as international community are also key to create the imagined space in which constitutionalisation unfolds. While the concept as an analytical category has been substantially criticised, it is ‘the intrinsic vagueness and emptiness of the concept and the absence of a specific signified [that] serve as an epistemological basis to construct states as a “Self” in a greater collective […]’ (Mitrani 2021, p. 186). Hence, the reiteration by a variety of actors, political leaders, policy-makers, ordinary people, constructs the realm in which constitutional dynamics are or ought to happen. Against this background, constructivist scholars not only highlight the role of norms in the social construction of social reality, but have also recently shed light on the concepts as well (compare Berenskoetter 2016; Ish-Shalom 2021). This literature highlights not only how concepts are meaningful, and therefore a central part in production of social dynamics such as constitutionalisation, but are also contested and powerful at the same time. The power and contested nature of concepts central to global constitutionalism, such as democracy, sovereignty, or human rights, is visible in settings in which actors seek to ‘employ concepts and conceptions as a powerful hegemonizing tool’ (Ish-Shalom 2021, p. 13). Yet, the contested quality also means that concepts are not stable entities, but are constantly changing over time. Notably, it is in the context of international law that the power of concepts and their historical development concur in the construction of social reality. In her critical engagement with empiricist history of international law, Anne Orford has recently outlined how lawyers still ‘intervene in contemporary debates by using the claims made in those narratives about international law’s “true” origins or “real” history’ (Orford 2021, pp. 16–17) and called for legal scholars ‘to think hard about the historical baggage’ (ibid.). Hence, a critical engagement with conceptual histories, norms, and normative assumptions in the construction of social reality are key aspects in recent constructivist scholarship. Given that global constitutionalism is a way to normatively evaluate changing global orders, reflexivity demanded by critical constructivists is of particular importance and should build a substantial basis for its research. In order to account for the normative plurality on a global

3 On differences between ‘conventional’ or ‘modern’ and ‘critical’ constructivism see the section ‘Order and normativity’ in this chapter. This chapter draws upon the critical strand for reasons explained in that section. For further explanations compare, among others, Wiener (2007b, p. 55f; 2008, p. 37; 2009, p. 179) and Fierke (2001; 2007).

Constructivism and global constitutionalism  117 scale, approaches with a global outreach, such as global constitutionalism, need to reflect on the lenses and indicators it constructs to assess and evaluate. When the philosophical and sociological foundations of constructivism started to shape the field of international relations, Nicholas Onuf critically pointed out with regard to the discipline: ‘We construct worlds we know in a world we do not’ (Onuf 1989, p. 38). Considering the growing prominence of global constitutionalism as a new academic field with an international outreach, scholars should reflect on critical insights developed by constructivism. To this end, the aim of this chapter is twofold: on the one hand, it seeks to reconstruct how constructivism as an approach within international relations and scholarship on international law have developed a prolific relationship. Although this cannot be done in great depth, major links and academic interventions are discussed. On the other hand, the aim is, with a look to future scholarship, to carve out the critical potential of constructivism for the study of global constitutionalism. Therefore, the chapter will proceed in three steps: the next section shows how the introduction of constructivism to international relations shaped the study of international law and therefore opened up possibilities to work between the disciplines and global constitutionalism specifically. On that basis, it will then be argued that constructivism is of particular relevance owing to its focus on how norms work, the production of normativity and the analysis of order which are central concepts with regard to processes of constitutionalisation at the same time. Finally, this chapter argues that constructivism offers a broader understanding of constitutionalisation based on sociological and philosophical perspectives (Tully 1995; Wiener 2007a, 2008; Brown 2012) allowing us to understand how social practices constitute and re-shape4 existing structures. Thus, it is not only the critical potential of constructivism seeking to reflect on the production of knowledge but also its theoretical and methodological rigour that allows us to understand global constitutionalism from different perspectives.

CONSTRUCTIVISM: LANGUAGE, LAW AND ‘CONSTITUTION’ Constructivism in international relations is neither a theory in a narrow sense nor a single approach that unifies constructivist research under given conceptual lenses. Owing to the fact that it draws on constructivism as a social theory,5 issues with regard to ontological, epistemological and methodological conceptions shape constructivist discourses in the course of the increasing prominence of the paradigm since the end of the Cold War.6 Notably, however, those scholars who prominently introduced constructivism to the study of international relations in the 1980s with a strong focus on international law at the same time, emphasise the importance of ontological and epistemological rigour. Friedrich Kratochwil and John Ruggie called for an interpretive epistemology when it comes to the ontological analysis of norms, 4 Note the emphasis on the procedural character of constitutionalisation. This aspect is outlined in the next section. 5 Notably, constructivism in international relations draws most prominently on works of Berger and Luckmann, Pierre Bourdieu, Karl Deutsch, John Dewey, Michel Foucault, Jürgen Habermas, John Searle, Etienne Wenger to name but a few of the most influential theorists. 6 Compare footnote 2 above on the debates of different strands within international relations. For an insightful explanation of different ‘logics’ that describe how norms work according to different constructivist approaches, compare Wiener (2007b).

118  Handbook on global constitutionalism which they used interchangeably with the term ‘law’, that refutes causal relation between norms (that is, law) and behaviour, for example with regard to compliance in the analysis of regimes (Kratochwil and Ruggie 1986, p. 772). The fundamental criticism constructivists brought into the realm of international relations and the study of international law, i.e. norms more generally, was the absence of language as an analytical perspective in the study of international politics. As Kratochwil explains: ‘Since all compliance with norms involves linguistic, conceptual argumentation, it is through analysing the reasons specific to a given rule or norm type that the intersubjective validity of its prescriptive force can be established’ (Kratochwil 1984, p. 707). The turn to law results from constructivists’ fundamental interest in analysing norms and rules that they identify as ontologically crucial to understand society’s co-constitution (Onuf 1989, p. 65; 1994). Although, Kratochwil and Onuf’s work on international relations and international law has been criticised for partly drawing on positivist assumptions despite their claim to do the opposite (Brunnée and Toope 2012, p. 126f),7 their work on law and politics substantially shaped constructivist approaches to research at this nexus until today. The merit of constructivist debates that unfolded in the following decades is at least threefold, particularly through the contestation of positivist assumptions. First, norms, whether in the form of law or not, have to be taken seriously by analysing how they emerge in specific spatio-temporal contexts, how they are being (re-)shaped and how they constrain actors. This leads, secondly, to constructivism’s argument that (legal) norms do not merely resemble ‘cheap talk’ in an anarchical world described by rational choice approaches. Constructivism, therefore, also offers analytical tools to debates among critical legal scholars who challenge the assumed dichotomy of liberal theories, which imagine constitutional rule and law as opposed to politics (Rajkovic et al. 2016, p. 1). According to different strands, norms rather have an effect on or shape discursive practices in specific contexts as they are embedded in social practices (Wiener 2018). The different epistemological conceptions that lurk behind these terms mark important differences between constructivists assuming stable norms and identities, as dependent variables, that structure behaviour (compare Katzenstein 1996, p. 5; Risse et al. 1999). In contrast, and with crucial relevance for global constitutionalism, critical constructivists have pointed out how norms and identities are co-constituted through social interaction (Wiener 2008; Wiener and Puetter 2009). Thus, thirdly, drawing on Anthony Giddens’s work (Giddens 1984), constructivists offer an alternative, that is, sociological, reading of constitution and constitutionalisation and, therefore, allow for a better understanding of how orders and social structures emerge and change. Accordingly, norm-generative practices and institutions that seek to regulate society are mutually constrained. Constitution in legal understandings ‘refers to a formal contract drafted in the name of “the people” for the purpose of establishing and controlling the powers of the governing institutions of the state’ (Loughlin 2010, p. 47). Here, constitutionalisation describes either a formal legal process in which norms are codified and authority is clearly defined, or the attempt to make ‘an entity subject to legal jurisdiction of an established constitutional order’ (Brown 2012, p. 205). In this context scholarship focusing on global developments primarily analyses ‘actual developments in international law and interpret[s] them as

Compare also the criticism by Adriana Sinclair of Kratochwil and Onuf’s work for ‘the “unreality” of both approaches’ neglecting power structures (Sinclair 2010, p. 35). Kratochwil’s reaction can be read in his recent book (Kratochwil 2014, p. 17). 7

Constructivism and global constitutionalism  119 manifestations of an ongoing constitutionalisation [or] they may start from the achievement of (domestic) constitutionalism’ (Kleinlein 2012, p. 81). In contrast, critical constructivists have argued that constitutionalisation is a social process (Wiener 2008, p. 26), which can be observed in legal and non-legal contexts entailing ‘processes of norm solidification and normative convergence’ (Brown 2012, p. 206). Hence, constitution has to be understood as a ‘thing and a process’ (Onuf 1994, p. 1, original emphasis) since it can refer to a set of norms that is ‘fixed’ in a spatio-temporal context.8 However, research has further to account for the social practices that may re-shape the meaning-in-use of norms even within perceived given communities. Particularly under conditions of diversity in the global realm, practices of contestation affect the quality of norms (Wiener 2014). In this light it seems to be no surprise that practices have gained increasing prominence not only within IR more generally, but also with regard to the analysis of international law (compare Adler and Pouliot 2011a; Brunnée and Toope 2011). While this focus on practice has caused some debate within constructivism and other approaches in IR, the lawyers Jutta Brunnée and Stephen Toope have offered a substantial critique of constructivist international relations scholarship regarding the analysis of international law, while drawing on constructivism and a notion of practice9 to develop a substantial answer to the perceived shortcomings (Brunnée and Toope 2010; 2011). Their criticism draws mainly on inconsistencies when it comes to international law. Different constructivist perspectives, they argue, turn to positivism and notions of formality when distinctive features of legal and non-legal norms are identified. Following the question ‘Are legal norms distinctive?’ put forward by Martha Finnemore (2000) and her outline, together with Stephan Toope, of a constructivist conceptualisation of legal obligation (Finnemore and Toope 2001) that contested the rationalist and materialist account of ‘legalization of world affairs’ (Abbott et al. 2000), Brunnée and Toope assert that constructivists have not yet developed a coherent approach to explain the emergence and absence of law as well as a theory of law itself (Brunnée and Toope 2012, p. 135). They argue for a sound conceptualisation of practice with regard to international law scholarship and claim that their ‘framework is the only one that emphasises both norm properties and legal practices and sees them, in keeping with their constructivist premises, as inextricably linked to one another’ (Brunnée and Toope 2012, p. 136). However, recent contributions of critical constructivists have precisely highlighted the necessity to differentiate between formal validity, social recognition and cultural validation in order to address the puzzle of how shared normative meanings-in-use or the contestation of meanings shape processes in the global realm and global governance structures (Wiener 2008). Notably, Brunnée and Toope’s notion of the practice of legality draws upon Adler and Pouliot’s definition of practices as ‘competent performances’ (2011b; 2011c, p. 6) assuming a community of practices in which practices are always more or less meaningful to actors involved. This, however, might be the case in specific instances as in the context of environ-

In his work, James Tully highlights the historical development of the meaning of constitutionalism. Crucially, constitutional law in the Greek term describes the legal framework agreed to by the people and refers to the customary ways of the people (Tully 1995, p. 60). This amplifies the importance of both legal processes and social practices. 9 Note that their understanding of practice is based on interactional perspectives shared by some constructivists. However, there are different conceptualisations of practice (compare Bueger and Gadinger 2014; McCourt 2016). 8

120  Handbook on global constitutionalism mental law, a case study both authors draw upon. Yet, in particular when it comes to processes of constitutionalisation in the global realm two limitations to this perspective occur. First, instances of contestation are likely to occur owing to the normative plurality that matter for social interaction on a global scale since actors without a given background knowledge of specific communities are involved. Second, it does not address the normative question of whether and how these contestations matter (Wiener 2014). From a critical constructivist perspective, global constitutionalism needs to account for contestations of actors that are subject of legal structures constructed within ‘communities of practices’. As Jutta Brunnée and Stephen Toope have argued: Constructivists are interested in many questions, of which the social creation of norms is only one. However, because international law is, of its very nature, norm focused, it is a fascination with norm creation, evolution, and destruction that has proven to be the strongest bridging point between some IL theorists and the constructivists. (Brunnée and Toope 2012, p. 119)

In sum, they draw useful connections between constructivism and legal scholarship and have substantially enriched the debate at this nexus. This is, without a doubt, a very productive perspective for global constitutionalism. Yet, as the critique and recent contributions to critical constructivism have shown, important aspects are missing. To this end, the following section seeks to point out how critical constructivism constitutes a central approach to global constitutionalism. In particular, its value-added contribution of this perspective is based on the critical notions on order and normativity. However, as will be argued they are not issues that merely connect both fields in the sense of bringing together two distinct research areas, but are rather fundamental themes for both academic enterprises. This turns constructivism, as a social theory and approach within IR, into a central approach to understand global constitutionalism. The focus on whether legal norms are distinctive is decisive. Yet, the questions global constitutionalism raises go beyond questions about the legality of norms.

ORDER AND NORMATIVITY Order or the absence thereof is a key issue in international relations. In a similar vein, for scholars of international law and global constitutionalism the analysis of order and its characteristics are a central issue. In international relations, debates about epistemological and ontological assumptions have also focused on critical reflections about state-centred approaches and the often assumed inside-outside logic. From (neo-)realism to conventional constructivism, states have either been treated as units or ascribed a stable and given identity. In this sense, order is either characterised by hierarchy or appears to be dependent on ‘what states make of it’ (Wendt 1992). Notably, this resonates with what has been called modern constitutionalism. Here, it provides the essence of order within a clearly defined framework, that is, the state, mostly through a written constitution establishing ‘the main institutions of government, enumerating their powers, and specifying the norms that would regulate their relations’ (Loughlin 2010, p. 48). The common feature of these state-centred approaches in international relations and constitutionalism is not only a purely epistemological claim that takes the state as a given actor and departing point for observation. It also rests in the deeply shared notion of European Enlightenment and the belief that only within Westphalian states

Constructivism and global constitutionalism  121 can order with a constitutional quality be guaranteed. Order outside of states is hardly possible and almost impossible with a constitutional quality. It comes as no surprise that critical constructivists have developed an alternative reading and criticised this approach on analytical and normative grounds.10 This section is concerned with the analytical shortcomings first, while the next section will turn to the normative problems. In brief, the co-constitution of norms and identities, as described in more detail above, rejects a priori conceptualisations of order and, in contrast, assumes that orders can emerge, change or disappear over time. Based on the difference between a material and social world, constructivists argue that the social construction of reality unfolds in discursive practices in the interaction of actors. ‘By making, following and talking about rules people constitute the multiple structures of society; through such rules societies constitute people as agents’ (Onuf 1994, p. 6). Hence, the interactional understanding of social construction highlights the procedural character that allows for change. This does not mean that a certain order is easily changed or ‘abolished’, especially if they are enshrined in a legal framework such as a constitution. The notion of an ‘order’ requires something more than recognition and a set of practices, however. It emphasizes the systematic and ‘transcendental’ conditions for the functioning of the rules that constitute our practices. Furthermore, we need some help in ‘applying’ these rules to a case at hand in a process of interpretation. (Kratochwil 2014, p. 90)

However, the power ascribed to fundamental norms within an order is not a result of a pre-given essence norms entail. In contrast, norms that constitute the basis for a certain order have gained their power through discursive practices in which specific interpretations appear as dominant in a temporal and spatial context. The role of modern constitutions as ‘bolstering contemporary political identify’ (Loughlin 2010, p. 53) of a pouvoir constitué is a case in point. Nevertheless, neither is an order a priori given nor is it stable over time and place. Neil Walker has described this with regard to the state-sovereigntist meta-principle that long served as the dominant ‘order of orders’. He goes on to explain that this can no longer be considered the ‘underlying basic grid’ through which relations between diverse legal-normative orders are understood in the global realm (Walker 2008, p. 373). Hence, in the course of globalisation this Eurocentric conception of order is reinforced and contested in different contexts at the same time. In light of the normative plurality in the global realm, however, other meta-principles compete or formulate alternative visions to hitherto dominant notions of order. Critical constructivism’s broader perspective and methodological rigour allows us to dissect normative changes that take place behind the façade of seemingly fixed structures articulated in positivist approaches. It is, thus, the aim to dissect the ‘normative grid’ (Hofius 2016) to underscore the normativity that lies beneath the manifold norms and their interpretations that are in play in the process of constitutionalisation. Firmly rooted in the sociology of knowledge, critical constructivists have to analytically account for how normativity is constructed in different contexts. Addressing normativity entails the critical reflection of social constructions in the analysis of research objects. Yet, it also requires a critical examination of knowledge production within scholarship itself in order to tackle the difficulties of analysis that is constrained by theoretical lenses.

10 Compare Wiener’s (2008, p. 8) concept of the ‘bifocal approach’ that includes empirical as well as normative assessment.

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CRITIQUE AND REFLEXIVITY In a second step in the double hermeneutical sense, this section seeks to draw attention to some normative problems in light of knowledge production in the field of global constitutionalism. A fundamental problem of global constitutionalism is that key analytical and normative concepts are strongly rooted in the historical experiences of Europe and the US. This is problematic not only because it ignores possible negative consequences of constitutionalisation in the global realm, but it also neglects the normative diversity in the global realm. Postcolonial scholarship would be a substantial asset for critical constructivism in order to uncover the dark sides of past and contemporary processes of constitutionalisation. The critical strand of constructivism draws upon critical theory that requires to reflect on the ‘grounds of knowledge’ (Brown 1994, p. 215, original emphasis). Explaining the essential features of modern constitutionalism, from the period of European Enlightenment until now, Martin Loughlin states with reference to the theory of constitutionalism: ‘It has exerted such an impact on the drafting of written constitutions since the late eighteenth century that the theory has almost become synonymous with the modern concept of constitution itself’ (Loughlin 2010, p. 48, emphasis added). This unfolds in different debates in global affairs, whether in abstract terms of a utopian future or in precise imagination formulated in policy advice. Exemplarily, constitutional design seems to offer a solution to conflicts outside of Western contexts (Kuperman 2015). The right ingredients and pieces tailored together appear to be helpful in turning ‘failed states’ into democratic organisations according to the narrative of good governance, that is, help them to become modern states in the contemporary world system. This, on the one hand, amplifies a deep interrelation of knowledge and the development of Eurocentric notions of modernity, critical scholars have rebuked. On the other hand, the absence of reflexivity substantially constrains empirical analysis of alternative practices underneath the formal surface and rejects the idea of different normative visions. As James Tully aptly describes, ‘the language of modern constitutionalism which has come to be authoritative was designed to exclude or assimilate cultural diversity and justify uniformity’ (Tully 1995, p. 58). This critique should substantially inform scholarship on global constitutionalism. Scholars of international law and, increasingly, scholars of international relations fundamentally problematise the historical formation of global (legal) structures. Lawyers have contributed a variety of perspectives on the imperial and colonial legacy of contemporary structures and international law (compare, among others, Koskenniemi 2001; Anghie 2005; Krisch 2005; Fassbender and Peters 2012; Darian-Smith 2013; Pedersen 2015), that have sparked critical strands of literature such as ‘Third World Approaches to International Law (TWAIL)’ (Anghie et al. 2003; Baxi 2003; Chimni 2003; Rajagopal 2003). In international relations the a-historical conceptualisation of realists has sparked criticism with the rise of other approaches like constructivism. Yet, only recently, historical perspectives that reflect the power of Eurocentric narratives (Hobson 2007; Kayaoglu 2010; Hobson 2012; Matin 2013) and account for the plurality of normative structures in temporal perspective have informed the debates in international relations. Notably, these critical strands also draw upon interactional understandings and refute the idea of stable and given normative structures evolving in

Constructivism and global constitutionalism  123 an historical and spatial vacuum.11 In contrast, they stress the interaction between states and non-state actors throughout history between different regions and how they affect local notions of normativity. Accordingly, the production of modernity unfolds in the interaction between Western12 and non-European states as well as their respective societies (Zarakol 2011; Ringmar 2012; Buzan and Lawson 2015). Hence, the Westphalian discourse has shaped non-Western agency in contending patterns as it created resistance in different forms (Rajagopal 2003) but also the desire, especially among elites, ‘to recreate themselves as “modern” states against a backdrop of an emerging international society of states’ (Zarakol 2011, p. 38) highlighting the normative power of this discourse. Crucially, the aim to account for normative plurality with regard to global structures and constitutionalism has been taken up by public philosophy. Most notably, James Tully’s seminal contribution has highlighted how the ‘concept of a constitution and its associated terminology have remained Janus faced ever since: looking back to an already constituted order under one aspect and looking forward to an imposed order under the other’ (Tully 1995, p. 61). Drawing on these insights that resonate with critical constructivism’s aim to pursue a reflexive research strategy, this contribution argues to reflect and broaden the epistemological perspective in regard to the study of constitutionalisation in the global realm. This implies, first, to account for non-Western experiences and subjectivities in processes of constitutionalisation. James Tully’s work has drawn attention to how dominant language and practices with regard to constitutionalism have not only neglected alternative practices, but also undermined possibilities of existence through the imperial language constitutionalism invokes. Hence, scholars working with normative blueprints, such as neo-Kantian regulative concepts, ‘tend not to notice the features of both the shared languages of description they employ and the practices of governance (legal and political institutions) they refer to that are imperial in a broader sense of the term’ (Tully 2008, p. 129). Thus, in order to account for normative plurality, the theoretical framework needs to be problem based and theory focused instead of theory driven (Wiener 2011, p. 12). It is, secondly, also important to shed more light on dynamics of knowledge production that materialise in global governance structures and, possibly, contribute to forms of constitutionalisation. The formation of global climate governance structures over the past decades is a case in point. Similar to other governance issues, climate change is an epistemological challenge and a subject that is made knowable through various practices, particularly through mapping and reporting by the Intergovernmental Panel on Climate Change (IPCC), in order to be identifiable, assessable and manageable. Whether this makes climate change really governable remains an open question (compare Humphreys 2020). However, policy-makers and states can draw on this produced knowledge to shape the formation of preferred climate. This dynamic of ‘packaging knowledge’ (compare Wiener et al. 2021) in order to shape policies and governance structures continues to be a contentious issue given not only the urgency of the climate crisis, but also in light of diverse ways of understanding climate change. Questions

Note that this perspective is also critical of earlier descriptions of postcolonial scholarship that often reinforce dichotomies stressing the distinctiveness of different sides. Recent contributions have shown that Eurocentrism is a ‘polymorphous, multivalent discourse that crystalizes in a variety of forms’ (Hobson 2012, p. 1). 12 The term ‘West’ or ‘Western’ is used in this text for an easier reading, being aware of its problematic use owing to the monolithic conception. In this case it subsumes West European and North American states and societies. 11

124  Handbook on global constitutionalism regarding the construction of legitimate climate governance structures may shape processes of constitutionalisation depending on how just these processes are seen. While climate litigation and constitutional rulings within individual states point to changing dynamics and a growing meaning of law in the context of climate change (for an overview compare Jaria-Manzano and Borràs 2019), it remains contested how climate change may affect or undermine processes of constitutionalisation. Since, the effects of climate change are fundamentally contesting concepts central to constitutionalism, research has to engage with different legal practices and different sites beyond the state in which climate related norms are produced. Since constitutionalism is a Western concept, future scholarship needs to account for the plurality of legal and normative imaginations around the globe. This raises, secondly, the epistemological question of how an academic framework such as global constitutionalism shapes and constrains the perspective on global processes. At times, the notion produces narratives that tell teleological stories of increasingly interwoven global structures leading towards a single process of constitutionalisation. Hence, it could be argued that the concept, understood as a normative endeavour in many ways produces ontological security, since it reproduces a consistent sense of self (compare Giddens 1990, p. 92). It creates narratives on what world politics and global processes could or ought to look like. Global constitutionalism claiming, as the name suggests, a global outreach seems to be appealing to many because it promises to affirm a consistent self in the growingly complex world. Yet, an a priori defined normative framework that guides global constitutionalism undermines the possibility of uncovering alternative visions of legitimacy. In contrast, critical constructivists reject a priori conceptualisation and develop a practice-based approach to constitutionalisation. Processes of constitutionalisation, therefore, have ‘to be assessed through empirical observation’ (Wiener 2015, p. 118) in different contexts.

CONCLUDING REMARKS The chapter has outlined some important developments in the field of constructivist international relations scholarship with regard to the analysis of international law in order to indicate important aspects in future research of global constitutionalism. Particularly, it has argued that critical constructivism offers substantial insights owing to its critical perspectives on norms, normativity and order. Since these elements constitute the substantial interest of global constitutionalism at the same time, scholars need to develop sound theoretical and methodological concepts. However, in this concluding section possible empirical implications following the suggested approach should be highlighted instead of reiterating the arguments made in the other parts. As mentioned in the introduction to this chapter, global constitutionalism is a field substantially shaped by lawyers, which is of little surprise. Accordingly, legal scholars and political scientists empirically focus on formal settings such as international organisations, (international) courts and other more clearly defined contexts associated with ‘international politics’. Yet, in order to better understand normative grids that are in play shaping the social recognition and legitimacy of global structures, researchers need to look beyond these formal settings and also account for context in which practices cannot be defined as ‘competent performances’. Turning to these practices allows actors who are located at the perceived fringes of international politics to be included (compare Lang and Weiner, Chapter 1 in this Handbook).

Constructivism and global constitutionalism  125 Societal protest that unfolds in contentious politics around the globe may not have the possibility of translating their claims into legal structures. Yet, through their contentious practices they reformulate normative structures which cannot be ignored in global constitutionalism. The protests in North Africa and West Asia (WANA) are one particular example (Wilkens 2015). In this regard, constructivism offers crucial perspectives in theoretical, methodological and empirical terms for the study of global constitutionalism.

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126  Handbook on global constitutionalism Finnemore, M. (2000), ‘Are legal norms distinctive?’, New York University Journal of International Law and Politics, 32 (3), 699–706. Finnemore, M. and S.J. Toope (2001), ‘Alternatives to “legalization”: Richer views of law and politics’, International Organization, 55 (3), 743–58. Giddens, A. (1984), The Constitution of Society: Outline of the Theory of Structuration, Cambridge: Polity Press. Giddens, A. (1990), The Consequences of Modernity, Cambridge: Polity Press in association with Basil Blackwell, Oxford. Guzzini, S. (2000), ‘A reconstruction of constructivism in international relations’, European Journal of International Relations, 6 (2), 147–82. Hobson, J.M. (2007), ‘Is critical theory always for the white West and for Western imperialism? Beyond Westphalian towards a post-racist critical IR’, Review of International Studies, 33 (Supplement S1), 91–116. Hobson, J.M. (2012), The Eurocentric Conception of World Politics: Western International Theory, 1760–2010, Cambridge: Cambridge University Press. Hofius, M. (2016), ‘Community at the border or the boundaries of community? The case of EU field diplomats’, Review of International Studies, 42 (5), 939–67. Hofius, M., J. Wilkens, H. Hansen-Magnusson and S. Gholiagha (2014), ‘Den Schleier lichten? Kritische Normenforschung, Freiheit und Gleichberechtigung im Kontext des “Arabischen Frühlings” – Eine Replik auf Engelkamp/Glaab/Renner, Ulbert und Deitelhoff/Zimmermann’ (‘Lifting the veil? Critical norms research, freedom and equality in the context of the “Arab Spring”’), Zeitschrift für Internationale Beziehungen, 21 (2), 85–105. Humphreys, S. (2020), ‘Ungoverning the climate’, Transnational Legal Theory, 11 (3), 244–66. Ish-Shalom, P. (ed.) (2021), Concepts at Work: On the Linguistic Infrastructure of World Politics, Ann Arbor, MI: University of Michigan Press. Jackson, P.T. (2006), ‘Making sense of making sense: Configurational analysis and the double hermeneutic’, in D. Yanow and P. Schwartz-Shea (eds), Interpretation and Method: Empirical Research Methods and the Interpretive Turn, Armonk, NY and London: M.E. Sharpe, pp. 264–80. Jaria-Manzano, J., and S. Borràs (eds) (2019), Research Handbook on Global Climate Constitutionalism, Cheltenham, UK, and Northampton, MD, USA: Edward Elgar Publishing. Katzenstein, P. (1996), The Culture of National Security: Norms and Identity in World Politics, New York: Columbia University Press. Kayaoglu, T. (2010), ‘Westphalian Eurocentrism in international relations theory’, International Studies Review, 12 (2), 193–217. Kennedy, D. (2007), ‘One, two, three, many legal orders: Legal pluralism and the cosmopolitan dream’, New York University Journal of International Law and Social Change, 31 (3), 641–59. Kleinlein, T. (2012), ‘Between myths and norms: Constructivist constitutionalism and the potential of constitutional principles in international law’, Nordic Journal of International Law, 81 (2), 79–132. Koskenniemi, M. (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge: Cambridge University Press. Kratochwil, F. (1984), ‘The force of prescriptions’, International Organization, 38 (4), 685–708. Kratochwil, F. (2014), The Status of Law in World Society: Meditations on the Role and Rule of Law, Cambridge: Cambridge University Press. Kratochwil, F. and J.G. Ruggie (1986), ‘International organization: A state of the art on an art of the state’, International Organization, 40 (4), 753–75. Krisch, N. (2005), ‘International law in times of hegemony: Unequal power and the shaping of the international legal order’, European Journal of International Law, 16 (3), 369–408. Kuperman, A.J. (ed.) (2015), Constitutions and Conflict Management in Africa: Preventing Civil War through Institutional Design, Philadelphia, PA: University of Pennsylvania Press. Loughlin, M. (2010), ‘What is constitutionalism?’, in P. Dobner and M. Loughlin (eds), The Twilight of Constitutionalism?, Oxford: Oxford University Press, pp. 47–72. Matin, K. (2013), ‘Redeeming the universal: Postcolonialism and the inner life of Eurocentrism’, European Journal of International Relations, 19 (2), 353–77. McCourt, D.M. (2016), ‘Practice theory and relationalism as the new constructivism’, International Studies Quarterly, 60 (3), 475–85.

Constructivism and global constitutionalism  127 Milliken, J. (1999), ‘The study of discourse in international relations: A critique of research and methods’, European Journal of International Relations, 5 (2), 225–54. Mitrani, M. (2021) ‘The conceptual virtues of the international community’, in P. Ish-Shalom (ed.), Concepts at Work: On the Linguistic Infrastructure of World Politics, Ann Arbor, MI: University of Michigan Press, pp. 185–202. O’Donoghue, A. (2014), Constitutionalism in Global Constitutionalisation, Cambridge: Cambridge University Press. Onuf, N.G. (1989), World of Our Making: Rules and Rule in Social Theory and International Relations, Columbia, SC: University of South Carolina Press. Onuf, N.G. (1994), ‘The constitution of international society’, European Journal of International Law, 5 (1), 1–19. Orford, A. (2021), International Law and the Politics of History, Cambridge: Cambridge University Press. Pedersen, S. (2015), The Guardians the League of Nations and the Crisis of Empire, Oxford: Oxford University Press. Peters, A. (2009), ‘The merits of global constitutionalism’, Indiana Journal of Global Legal Studies, 16 (2), 397–411. Peters, A. (2014), ‘Konstitutionalismus als globale Errungenschaft’ (‘Constitutionalism as global achievement’), in J. Delbrück, U. Heinz, K. Odendahl, N. Matz-Lück and A. Von Arnauld (eds), Aus Kiel in die Welt: Festschrift zum 100-jährigen Bestehen des Walther-Schücking-Instituts für Internationales Recht, Berlin: Duncker & Humblot, pp. 127–38. Rajagopal, B. (2003), ‘International law and Third World resistance: A theoretical inquiry’, in A. Anghie, B. Chimni, K. Mickelson and O. Okafor (eds), The Third World and International Order: Law, Politics, and Globalization, Leiden and Boston, MA: Martinus Nijhoff, pp. 145–72. Rajkovic, N., T.E. Aalberts, and T. Gammeltoft-Hansen (eds) (2016) The Power of Legality: Practices of International Law and Their Politics, Cambridge: Cambridge University Press. Ringmar, E. (1996), ‘On the ontological status of the state’, European Journal of International Relations, 2 (4), 439–66. Ringmar, E. (2012), ‘Performing international systems: Two East-Asian alternatives to the Westphalian order’, International Organization, 66 (1), 1–25. Risse, T., S.C. Ropp and K. Sikkink (eds) (1999), The Power of Human Rights: International Norms and Domestic Change, Cambridge: Cambridge University Press. Sinclair, A. (2010), International Relations Theory and International Law: A Critical Approach, Cambridge: Cambridge University Press. Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Tully, J. (2008), Public Philosophy in a New Key, Volume II: Imperialism and Civic Freedom, Cambridge: Cambridge University Press. Walker, N. (2008), ‘Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders’, I-CON: International Journal of Constitutional Law, 6 (3–4), 373–96. Weiler, J.H.H. (1999), The Constitution of Europe. ‘Do the New Clothes Have an Emperor?’ and other Essays on European Integration, Cambridge: Cambridge University Press. Weldes, J. and D. Saco (1996), ‘Making state action possible: The United States and the discursive construction of “The Cuban problem”, 1960–1994’, Millennium: Journal of International Studies, 25 (2), 361–95. Wendt, A. (1992), ‘Anarchy is what states make of it: The social construction of power politics’, International Organization, 46 (2), 391–425. Wiener, A. (2007a), ‘Demokratischer Konstitutionalismus jenseits des Staates? Perspektiven auf die Umstrittenheit von Normen’ (‘Democratic constituionalism beyond the state? Perspectives on the contestedness of norms’), in P. Niesen and B. Herborth (eds), Anarchie der kommunikativen Freiheit: Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt am Main: Suhrkamp, pp. 173–98. Wiener, A. (2007b), ‘The dual quality of norms and governance beyond the state: Sociological and normative approaches to “interaction”’, Critical Review of International Social and Political Philosophy, 10 (1), 47–69.

128  Handbook on global constitutionalism Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters, Cambridge: Cambridge University Press. Wiener, A. (2009), ‘Enacting meaning-in-use: Qualitative research on norms and international relations’, Review of International Studies, 35 (1), 175–93. Wiener, A. (2011), ‘Constitutionalism unbound: A practice approach to normativity’, ‘Practice, Ethics and Normativity’ paper presented at the Annual Millennium Conference ‘Out of the Ivory Tower – Weaving the Theories and Practice of International Relations’, London School of Economics and Political Science, 22–23 October, accessed 20 April 2017 at http://​ssrn​.com/​abstract​=​2103049. Wiener, A. (2012), ‘Global constitutionalism’, Oxford Bibliographies in International Relations, doi:10.1093/obo/9780199743292-0092. Wiener, A. (2014), A Theory of Contestation, Berlin: Springer. Wiener, A. (2015), ‘A hidden asset in times of crisis: The EU’s unbound constitutional quality’, in S. Champeau, C. Closa, D. Innerarity and M.P. Maduro (eds), The Future of Europe: Democracy, Legitimacy and Justice after the Euro Crisis, London: Rowman & Littlefield, pp. 111–34. Wiener, A. (2018), Contestation and Constitution of Norms in Global International Relations, Cambridge: Cambridge University Press. Wiener, A. and U. Puetter (2009), ‘The quality of norms is what actors make of it: Critical constructivist research on norms’, Journal of International Law and International Relations, 5 (1), 1–16. Wiener, A., Wilkens, J., & F. Schenuit (2021), ‘Knowledge production’. in D. Stammer, A. Engels, J. Marotzke, E. Gresse, C. Hedemann, and J. Petzold (eds), Hamburg Climate Futures Outlook 2021: Assessing the Plausibility of Deep Decarbonization by 2050 (1 ed., pp. 109–112), Hamburg, Germany: Cluster of Excellence Climate, Climatic Change, and Society (CLICCS). Wilkens, J. (2015), ‘Contention and constitutionalization in the global realm: assessing the uprisings in West Asia and North Africa and their impact on international politics’, in F.A. Gerges (ed.), Contentious Politics in the Middle East: Popular Resistance and Marginalised Activism Beyond the Arab Spring Uprisings, New York: Palgrave Macmillan, pp. 25–50. Zarakol, A. (2011), After Defeat: How the East Learned to Live with the West, Cambridge: Cambridge University Press.

10. Realist perspectives on global constitutionalism Oliver Jütersonke

INTRODUCTION Realism enjoys a prominent legacy in both scientific and artistic circles and across a variety of disciplines. In the field of international relations (IR), the ‘realist school’ constitutes the principal benchmark, the ‘primary or alternative theory in virtually every major textbook addressing general theories of world politics, particularly in security affairs’ (Legro and Moravscik 1999, p. 5). The alleged pantheon of international realist thought stretches from Thucydides via Hobbes to proponents of nineteenth-century German Realpolitik and the American realists of the post-World War Two era (for an overview see Bell 2009). This is a rich intellectual heritage that is too often occluded in straw-man versions used as a null hypothesis backdrop for arguments about how international law does not matter in an anarchical setting of power politics (Steinberg 2002, p. 261) – thus prompting numerous calls to unearth and rehabilitate realist thought in all its diversity (see, for example, Lang 2004; Tjalve 2008; Jütersonke 2010; Scheuerman 2011). Realist thought is certainly not confined to politics, however, and has diverse meanings across disciplines. In moral philosophy, for instance, realism assumes that moral facts exist, and that moral judgements are an expression of beliefs deemed to be objectively true or false – a position that a political realist has no particular reason to share. In legal theory, as outlined below, realism pertains to the view that the normativity of positive law can be reduced to social facts – again an altogether different proposition to the argumentative stance usually associated with political realism. While it is important to distinguish such disciplinary variations in how the realist label is applied, it is equally crucial to acknowledge that realism is a relational concept, in that a claim to being realist defines itself and is evaluated with regard to an opposing conception – idealism, utopianism, formalism, positivism, legalism, or whatever happens to be perceived as the ‘other’ at that point in the debate (for a useful discussion see Chimni 1993). A person is not absolutely and categorically a realist, but more realist(ic) than his or her interlocutor – a fact that we wish to make clear in our heated discussions and use as an argumentative device to discredit our opponents. As the international lawyer Hersch Lauterpacht already complained in the 1930s, an appeal to realism can simply constitute an at times objectionable method of argument in which the speaker lays an exclusive claim to wisdom: ‘I am a realist; I am a sound person; I am a practical man; I look to realities; I see things as they are and not as I would like them to be’ (Lauterpacht 1975, p. 53). Whereas you, the opponent, ‘[y]ou are a Utopian; you are a dreamer; you see people and events as what you think they ought to be and not as what they are’ (Lauterpacht 1975, p. 53). On that level of analysis, we are all realists, perhaps – if it is ‘nothing else than the method, or temper, or attitude most calculated to realize our desires’, to quote Lauterpacht (1975, p. 54) again, ‘[w]ho but a crank or a fool does not wish to be a realist in that sense?’ 129

130  Handbook on global constitutionalism All this is not to say that realism as an academic term is void of substance. In ­philosophy, its origins are commonly traced back to the early scholastic period, and to a debate between (Platonic) realists who claimed the independent existence of universals or abstract objects, and nominalists who denied the existence of such universals – but already back then, the rhetorical element of such labels is strikingly obvious, with John of Salisbury’s Metalogicon (1159 [1955]) referring to the ‘Nominalist sect’ in an effort to discredit those who held a different view (see also Carré 1946 [1993]). Many centuries on, ‘transcendental realism’ was used in contradistinction to ‘transcendental idealism’ by Immanuel Kant in his Critique of Pure Reason (1781/87 [1998]), and the German literary giants Friedrich Schiller and Johann Wolfgang von Goethe also engaged in lengthy correspondence on the realism–idealism distinction in the fields of poetry and aesthetics. Yet, the history of ideas of the realist label need not concern us for the purposes of this chapter; nor must we invest much energy on the ways realist perspectives have been projected onto a variety of (mostly dead) thinkers for the purpose of producing a disciplinary canon worthy of a ‘realist school’ of IR (see Jütersonke 2010, pp. 5–9). What is of importance, however, is the relational nature of realism, as well as the rhetorical move associated with its application to legal and political affairs. The following sections entail a series of thought experiments about what it might mean to adopt a realist perspective on global constitutionalism. There is no clearly identifiable realist branch within the literature on constitutionalism in – and the constitutionalization of – the international sphere, and this chapter does not aim to take a sub-set of authors and place them into the realist camp. Indeed, most of the scholars cited below do not self-identify with realism, and the bibliographical references for this chapter should not be taken as a list of archetypical realists. Instead, the chapter offers a set of tentative reflections on what a realist perspective might entail, and on how such a viewpoint could generate a constructive contribution to the global constitutionalism debate. To do this, it will be necessary to distinguish between legal and political realism in a bit more detail.

LEGAL REALISM Starting with the notion of ‘legal’ realism may seem counterintuitive to some readers, in the sense that it is an arguably far more obscure intellectual position than its ‘political’ counterpart. As the following paragraphs seek to highlight, however, some of those scholars studying – and being positively inclined towards – the observed constitutionalization of the international realm share views and assumptions that can easily be associated with legal realism. These can then be juxtaposed onto the political realist critique of global constitutionalism. As we shall see in the concluding section, it is by contrasting its legal and political variants that we can begin to make sense of the realist contribution to the themes addressed by this Handbook. In legal theory, realism has a rather short and chequered history, and the label ‘legal realism’ was only explicitly applied to a set of American scholars reacting in the 1930s to the perceived inadequacy of legal formalism, as well as to a group of Scandinavian legal scholars working, at around the same time period, in a similar vein (for important caveats and further details see Jütersonke 2016). Instead of the ‘mechanical jurisprudence’ of classical legal thought already discredited by Roscoe Pound (1908), and instead of deductive legal reasoning that was deemed misleadingly neutral and thus apolitical, the Great Depression highlighted the need for legal theory and practice to build on insights from the social sciences. Inspired by pragmatist philos-

Realist perspectives on global constitutionalism  131 ophy, it was time for ‘law in action’ rather than ‘law in books’, for law grounded in experience rather than in abstract logic, and grounded in the facts rather than in general propositions. Legal realists such as Karl N. Llewellyn and Jerome Frank emphasized the law’s indeterminacy and warned, in the words of their Scandinavian colleagues (notably Anders V. Lundstedt and Karl Olivecrona in Sweden and Alf Ross in Denmark), against the law’s dependence on ‘supernatural’ forces, ‘mystic-magical’ thinking, and the ‘imaginative lucubration’ that had dominated formalist legal thought for centuries (see Escorihuela 2003). In hindsight, legal realism has left an ambiguous legacy, ranging from the view that it was no more than a historical curiosity that had appeared out of a very specific societal context (Leiter 2001, p. 279), to the cliché, still commonly heard among legal scholars and practitioners, that ‘we are all realists now’ (Singer 1988, p. 467). The concrete heir to American legal realism is often taken to be Yale’s Myres McDougal, who, together with the political scientist Harold Lasswell, began in the 1940s to call for a new direction in legal education, one that sought to constitute a ‘conscious, efficient, and systematic training for policy-making’ (Lasswell and McDougal 1943, p. 206, original emphasis). Focusing too narrowly on general doctrines and the formal validity of legal rules, they claimed, only nurtured the law’s indeterminacy further and exacerbated the artificial distinction between law and policy, between formulations de lege lata and de lege ferenda (McDougal 1953, p. 144). International law, in particular, could only be relevant if it refrained from focusing on formal authority, and instead emphasized the establishment of effective control through value-dependent policies and processes – and this required the development of a legal ‘policy science’ that was based on democratic values and that incorporated social scientific methods into the study of law. Reviewing today’s global constitutionalism literature, one cannot but get the impression that the study of the constitutionalization of the international sphere has a decidedly legal realist ring to it. Works by the likes of Fassbender (1998), De Wet (2006) or Dunoff and Trachtman (2009) may not be explicitly identifying with what is now branded as new legal realism (see Nourse and Shaffer 2009 for an overview), but they do seem to share the legal realist’s basic tenets of pragmatism, socially observed law in the making, and a rejection of legal formalism. It is probably no accident that in his much-cited article on the United Nations (UN) Charter, Fassbender (1998, p. 535) quotes Karl N. Llewellyn, one of the key figures of American legal realism, who had claimed that a constitution was ‘in essence not a document, but a living institution built (historically, genetically) in first instance around a particular Document’ (Llewellyn, 1934, p. 3; original emphasis). It is through an approach that seeks to relate the law to concrete social processes, as originally advocated by the legal realists, that we can begin to make a case for an observed constitutionalization on the supranational level, pointing to a variety of normative elements deemed hierarchically superior. These, according to one classification offered by Ulrich K. Preuss (2008, pp. 38–41), can be grouped into obligations erga omnes; peremptory norms (or ius cogens); ‘world order treaties’ such as the UN Charter, international human rights covenants, or the UN Convention on the Law of the Sea; and the establishment of independent, compulsory judiciaries such as the International Criminal Court (ICC). As Hans J. Morgenthau – typically identified as a founding father of the realist school of IR but originally a scholar of law – already pointed out in 1940, in their shared aim of replacing ‘the fictitious legalism of traditional jurisprudence with a conception nearer to the realities of the law’, legal realists:

132  Handbook on global constitutionalism do not regard the legal rules as definitely determined by their legislative or judicial formulation, but search for the psychological, social, political and economic forces which determine the actual content and working of legal rules and which, in turn, are determined by them. In other words, their scientific goal is to formulate uniform functional relationships between those forces and the legal rules. Hence, ‘realist’ jurisprudence is, in truth, ‘functional’ jurisprudence. (Morgenthau 1940, pp. 273–4)

In strikingly similar terms, Dunoff and Trachtman (2009, p. 23) propose a ‘functional approach to international constitutionalization’ resting on the premise that the ‘status of a text or set of norms as constitutional . . . is thus a contingent social fact that can be usefully examined through historical, sociological, statistical, psychological, or other relevant evidence’. Following Richard Falk (1993, p. 14, cited in Dunoff and Trachtman 2009, p. 22), it is now a matter of extending such ‘constitutional thinking’ to the world order – albeit acknowledging the ‘practical, analytic, and normative challenges’ (Dunoff and Trachtman 2009, p. 25) that such a transposition entails. Erika De Wet, for her part, proposes to extend the term constitution ‘to describe a system in which the different national, regional and functional (sectoral) constitutional regimes form the building blocks of the international community (“international polity”) that is underpinned by a core value system common to all communities and embedded in a variety of legal structures for its enforcement’ (De Wet 2006, p. 53). Here, the fundamentals of legal realism meet the ‘policy approach’ of Lasswell and McDougal mentioned previously, which asserted that in order for international law to be relevant, it needed to rely on value-dependent ‘policies’ and ‘processes’ – and such sociological descriptions of legal decision-making also involve the identification of those ‘common values’ (‘human dignity’ for McDougal, ius cogens norms and erga omnes obligations for De Wet) that serve as a way of controlling (political) power (see Koskenniemi 2005, pp. 201–9). In summary, therefore, and in a trend that can also be observed in the ‘social fact’ conception of law pursued by global administrative law (for example, Kingsbury et al. 2005; Kingsbury 2009) or the transnational legal process movement (for example, Koh 1996), the literature on the constitutionalization of the international sphere follows, explicitly or not, legal realist premises. As David Kennedy (2009, p. 48) notes: ‘[w]e embark on the constitutionalization of the world not only atop the ruins of our conventional disciplines but also against the background of these earlier and still powerful efforts to rethink the legal order in unconventional ways’. Legal realism is an important component of this intellectual heritage.

POLITICAL REALISM The previous section insisted on the legal realist premises of the debate surrounding the constitutionalization of international normative frameworks so as not to fall into the trap of over-simplistically equating realism with the arguments brought forth by the (more ‘realistic’) political sceptic. The arguments of the Realpolitiker often amount to the unwillingness to engage in rosy-eyed reflections about the prospects for world peace, and to a distrust in the potential of institutions to mitigate our perennial ‘will to power’, to use Friedrich Nietzsche’s vocabulary. Yet realism has potentially more to offer than such a straw-man version of the eternal doomsayer who is pessimistic about human nature and accepts that we live in a Hobbesian world of all against all in which our existence is necessarily nasty, brutish and short. Politics is about solving collective action problems, after all, and the political realist builds the analysis on the credible assumption that, more often than not, this entails submitting

Realist perspectives on global constitutionalism  133 to the interests of those in positions of power or authority. In the sphere of international politics, and in contrast to neoliberal and constructivist colleagues, political realists would thus claim that institutions have a minimal role to play, as they are simply a reflection of the prevailing distribution of power among states (see Reus-Smit 1997 for an overview). If international cooperation can be observed, it is usually because conditions of hegemony prevail, with the dominant state enabling the creation, maintenance and, ultimately, the instrumentalization of supranational institutions for the sake of furthering its interests and maximizing its power. Starting from such a perspective, what would a political realist have to contribute to the global constitutionalism debate? Possible arguments are interrelated and could be brought forth with varying degrees of nuance and sophistication, but at least three main strands can be identified. Building on the work of Mattias Kumm (2009, p. 60) – who, it must be emphasized, would probably not place himself in the realist camp – these strands can be grouped under the headings of coherence, effectiveness and legitimacy. A variety of assertions and viewpoints could be placed under each heading, and the following paragraphs do not seek to paint an exhaustive picture. Instead, a series of typical arguments are briefly outlined for purely illustrative purposes. In terms of coherence, the political realist would probably start from where we left off in the previous section, namely, with the functionalist approach of many a legal realist maintaining that constitution-like elements can be observed in the international realm. So how do we get from such issue-specific ‘partial constitutionalizations’ (Peters 2006, p. 602) – about trade or human rights and so on – to a more holistic constitutional configuration? That is, how do we deal with the ‘purposive bias’ (Kennedy 2009, p. 62) that arises when claims regarding global constitutionalization rest on starting observations about a selection of existing institutional arrangements such as the UN Charter or the ICC? Asserting that certain elements of global governance are part of a constitutional order assumes that they each have a (predetermined) function, ‘that the world is, in fact, constituted – that things do add up, one way or another’ (Kennedy 2009, p. 62). Yet history, the political realist will warn, was a much more haphazard and reactive affair, and seeking with hindsight to instil a sense of ‘constitutional’ order onto it amounts to a Whig interpretation of historical events that presupposes an unjustifiable claim to inevitable progress. Also, how do we even know that the elements selected are indeed the most pertinent ones? Perhaps regulations in, for instance, the global banking sector – or even those regulating illicit financial flows – are just as intrinsic a part of our global constitutionalist set-up as our more benign framework for, say, ‘sustaining peace’ (United Nations 2016). So is the literature on global constitutionalization not simply an attempt (mostly by scholars of international public law) to counteract the ominous fragmentation of their field, as diagnosed in detail by the International Law Commission (2006)? In the face of ‘deep disciplinary anxieties’ (Dunoff 2006, p. 649) about international law’s current role and status, constitutionalism carries the promise that there is some system in all the madness, some way in which the whole system hangs together and is not merely the aggregate of isolated and often contradictory movements. The conflicts between trade and environmental rules, trade and human rights, or trade and labour standards, may not, in their own terms, seem solvable, but they might appear manageable, at least, in a matrix of constitutionalism, for such a matrix would suggest that there are some values which simply cannot be affected: there is a bottom line, somewhere, somehow, an apparent unity underlying all apparent disunity. (Klabbers 2004, p. 49)

134  Handbook on global constitutionalism With the ‘systemic character’ of international law ‘threatened by a multiplicity of international régimes without obvious coherence’, the ‘constitutionalization of partial régimes appears as antidote rather than confirmation of the constitutionalization of the international legal system as a whole’ (Paulus 2009, p. 70). A second set of issues a political realist might raise relates to effectiveness. Some (for example, Kumm 2009, p. 260) have discussed the merits of distinguishing between global ‘constitutionalism’ with a small ‘c’, as opposed to the stronger, foundational reading of ‘big-C’ ‘Constitutionalism’ as developed in domestic political theory (for a recent reappraisal see Loughlin and Walker 2007; also Krisch 2010a, pp. 47–52). From that perspective, and however low one’s requirements for a proceduralized popular sovereignty in the domestic realm may be, they will hardly be fulfilled in a postnational space where power and wealth differentials, language and cultural barriers, and the lack of identification with a common project render meaningful communication and deliberation beyond a narrow elite very difficult. (Krisch 2010a, p. 56)

Nevertheless, and even if we acknowledge that the absence of a genuine pouvoir constituant at the inter-state level should not deter us from exploring the merits of a ‘constitutionalism lite’ at the level of international organizations (Klabbers 2004), the question arises as to whether many of the phenomena discussed by international lawyers under this rubric are not simply instances of ‘thicker legalization and institutionalization, without any need to resort to the notion of constitution’ (Peters 2006, p. 597; also Grimm 2005, p. 460). In order for there to be an analytic added value to the application of constitutionalist vocabulary to the international level, it must be more than an assertion of the bindingness of international legal rules: having a constitution presupposes a notion of hierarchy (and a dominant power, basic norm, or source of legitimacy that is superior to all other legal norms), a measure of comprehensiveness, as well as some form of judicial control in order to enforce its norms (see Paulus 2009, pp. 75–7). Yet international (public) law, as Hans J. Morgenthau already pointed out in his classic Politics Among Nations (1948), is voluntarily established among sovereign states in order to regulate ‘normalized’ relations under conditions of anarchy. It is a horizontal, decentralized form of legal framework with respect to legislation, adjudication and norm enforcement (see also Grimm 2010, p. 22), particularly for issues related to vital, ‘national’ interests – Morgenthau (1948, p. 211) called international law a ‘primitive’ form of law for precisely this reason. As a result, whoever ‘uses the language of constitutionalism in relation to public international law is suspected of effectively advocating some version of a constitutional world state’ (Kumm 2009, p. 259) – which, the political realist would argue, is ‘unattainable in this world’ (Morgenthau 1948, p. 539). Even on the regional level, the European Union (EU) faces the dilemma that the European treaties ‘are not an expression of the self-determination of a people or a society about the form and substance of their political union. The EU does not decide upon its own legal foundation’ (Grimm 2010, p. 17). If EU member states would ever agree to such a move, then a European federal state would be conceivable – the failed Constitutional Treaty, however, demonstrates that many if not most European powers have no intention of moving in that direction. Instead, EU-related ‘talk of constitutionalism (whether invoked innocently or deployed strategically) is a solecism that taps into an understanding of political community that does not (yet) exist’ (Halberstam 2009, p. 327; also Walker 2008, pp. 520–25, who discusses this point under the headings of ‘inconceivability’ and ‘improbability’). Back to the global level, and the ‘bitter truth’, then, ‘is that neither the WTO Charter or the UN Charter comes even close to embodying the basic elements of “constitutionalism” with

Realist perspectives on global constitutionalism  135 which we are familiar, namely the separation of powers, checks and balances, democratic representation and participation, an emphasis on individual rights, and governmental restraint in the exercise of power’ (Kratochwil 2014, p. 97). So why go to such lengths to portray international cooperation in constitutional terms? Here, finally, the political realist might point to the ‘ism’ in ‘global constitutionalism’ and to concerns about legitimacy. This entails the worry that ‘those who work in the constitutionalist vernacular are often dressing up normative projects in sociological terms’, and that ‘current constitutionalist discussions of global governance, although they begin as description, end up sounding far more like proposals to remake the world’s political order by sacralizing the institutional forms with which they are most familiar’ (Kennedy 2009, pp. 60–61). Antje Wiener (2008, p. 26) makes the useful distinction between constitutionalization as an observed ‘social process’ with an ‘exclusively descriptive content’ and constitutionalism as an ‘academic artefact’, a ‘helpful tool’ that offers an ‘analytical framework’ to make sense of what we are observing. However, the political realist would presumably assert that far from being a neutral vocabulary, it harbours an inherently ‘political agenda’ (Peters 2006, pp. 583–4). Perhaps constitutionalism is not necessarily ‘an awfully vague and possibly sinister term’ (Young 2003, p. 528), but the terminology does evoke the imperial and colonial heritage of international public law – that is, the combination of a ‘universalist façade’ and the ‘discriminatory and imperialistic practices’ of domination that it conceals (Jouannet 2007, p. 382). As James Tully (2007) has highlighted, it is misleading to portray constitutional states as first having developed in the West, before constitutionalist thinking was then projected to the international sphere. Instead, these states developed within those very systems of imperial and colonial law (see also Anghie 2004) that brought about the state constitutional forms and notions of constituent powers we are familiar with today. These notions rest on an understanding of a popular ‘right to resistance’ when sovereign power is unchecked, and to an ascending pattern of legitimation (Ullmann 1975, pp. 30–31) in which the sovereign derives a basis for rule on the consent of those governed. However, as much as the ‘constitution’ is supposed to constrain the sovereign’s power, political realists since Hobbes and Bodin have pointed to the ways in which, ‘particularly in the great game of foreign power with other sovereigns’ (Tully 2007, p. 322), the state maintains the upper hand. Ultimately, ‘the field of “constitutional form and constituent power” is really a game between the constitutive sovereign and the constituent people within and over the constitutional form (the “contract” between them) – a game that, according to the realists, the sovereign dominates’ (Tully 2007, p. 322, original emphasis). On one level of analysis, therefore, the political realist will point to the ambitions of the (American) hegemon, who may foster an ‘anti-constitutionalist trend’ (Peters 2006, pp. 604–5) by ignoring – or indeed disengaging from (Koskenniemi 2004a, p. 243) – various facets of international criminal and human rights law as well as treaty application. Far more subversively, however, the rhetoric of global constitutionalism can also be debunked as the ‘mindset’ of empire (Koskenniemi 2007, p. 18), as a convenient way through which to depoliticize high politics by occluding the particularistic interests of the dominant power behind a universalistic (and universalizing) guise – leading to a ‘hegemonic technique’ (Koskenniemi 2004b) in the form of a hollow ‘legalism’ and ‘moralism’ that the likes of Morgenthau had already diagnosed almost a century ago (see Jütersonke 2010, pp. 146–74; also Preuss 2008, pp. 48–9). Neil Walker (2002, p. 319) aptly elaborates on these tendencies under the headings of ‘ideological exploitation and debased conceptual currency’. In the final analysis, attempting

136  Handbook on global constitutionalism to constitutionalize international society, as Nico Krisch (2010b, p. 255) notes, is ‘bound to sanction structures that primarily benefit the powerful’.

CONCLUDING THOUGHTS In his seminal work From Apology to Utopia (2005), Martti Koskenniemi demonstrated how the structure of international legal argument is characterized by a perpetual discursive oscillation between normativity and concreteness (for a concise overview see Koskenniemi 2012, pp. 60–61). International law needs to maintain a normative dimension in that it does not simply entail a description of a particular rule or institution but actually imposes a measure of ‘oughtness’ onto it – certain requirements or obligations about how things should be. However, legal abstractions need to be grounded in fact as well, that is, in the reality of the international sphere. The concreteness of international law thus refers to its responsiveness to changes in the behaviour, will and interests of states and other authoritative actors, while normativity denotes international law’s degree of autonomy from the behaviour of these actors. The argumentative resort to realism plays a central role in this discursive tussle between normativity and concreteness that lies at the heart of the liberal vision. Without concrete processes, international law would face the charge of being utopian, as it would mean assuming the existence of a natural morality independent of the behaviour, will and interests of states. This is why international lawyers turn to treaties, customs and decisions of international institutions, to the ‘canvas’ (Koskenniemi 2012, p. 60) of verifiable facts that prevent legal ideas from being mere philosophical abstractions – and this is essentially the legal realist’s mantra against formalism that is also at the heart of the claims made by those scholars emphasizing the increasing constitutionalization of the international sphere. Yet without a normatively compelling set of rules, international law is unable to discursively establish its independence from state policy – which is why those advocating for global constitutionalism leave themselves open to the political realist’s charge of being an apology for state interests, systemic inequalities (Kingsbury 1998), ‘untamed’ sovereignty (Fassbender 2003), and the occlusion of particularist ideologies behind (highly instrumentalized) appeals to a universally accepted normative order. So the oscillation between normative abstraction and sociological description continues. All sides in the global constitutionalism debate lay claim to a greater dose of realism by either debunking the hypocritical servant of power or by unmasking the naive imagination of the utopian believer in the importance of international legal rules, institutions and, ultimately, constitution-like elements. In the final analysis, neither side is right or wrong. Instead, this argumentative dynamic is in and of itself constitutive of our collective attempts to make sense of our global institutional surroundings – and our reflections are all the richer for it.

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Realist perspectives on global constitutionalism  139 Tully, J. (2007), ‘The imperialism of modern constitutional democracy’, in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press, pp. 315–38. Ullmann, W. (1975), Law and Politics in the Middle Ages: An Introduction to the Source of Medieval Political Ideas, Ithaca, NY: Cornell University Press. United Nations (2016), Security Council Resolution 2282 (April 27), UN Doc. S/RES/2282, New York: United Nations. Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59. Walker, N. (2008), ‘Taking constitutionalism beyond the state’, Political Studies, 56 (3), 519–43. Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters, Cambridge: Cambridge University Press. Young, E.A. (2003), ‘The trouble with global constitutionalism’, Texas International Law Journal, 38 (3), 527–45.

11. Critical theory Gavin W. Anderson

Globalization represents not just a transition between different conceptual frameworks or even ideologies, but also engages fundamental questions of what it is to be in the world. Hegemonic analyses of globalization emphasize the ‘neoliberal redefinition of the political on a world scale’ (Gill and Cutler 2014b, p. 5) in which the investor and the consumer are the constitutionally privileged actors, rather than the democratically engaged citizen (Schneiderman 2008, p. 191). At the heart of the critical response to these developments is the rallying cry that ‘another world is possible’ (Santos 2014, p. 41), one which imagines a reversal of the global subordination of much of social life to the dictates of the market (Munck 2007, p. 17). There is now a developed literature, and a growing cohort of scholar-activists, under the rubric of ‘globalization from below’ (Santos and Rodríguez-Garavito 2005a), drawing inspiration from the global South, which for some represents ‘the most politically compelling aspect of globalization’ (Santos and Rodríguez-Garavito 2005b, p. 2). What is less clear – and addressed directly in this chapter – is where critical constitutional theory fits into this picture, and what role, if any, it can play in moving toward alternative visions of globalization to neoliberalism. The difficulty in answering this question stems in part from a historical distrust of constitutionalism by critical thinkers as a means of stymieing majoritarian reform, which is exacerbated by the contemporary appropriation of constitutional tropes to safeguard neoliberalism against democratic regulation. This raises the key problem of whether we can use the vocabulary of constitutionalism both to describe an often dense structure of constraints on redistributive politics, and to devise a means of overcoming those constraints. In practice, this has led critics either to acknowledge the relatively modest nature of counter-proposals they make within the constitutional framework (Schneiderman 2008, p. 203) or to see the route to social change as lying outside constitutionalism altogether (Mandel 2000–2001). Overarching the issue of strategy are two more basic questions, the answers to which tend to be assumed rather than articulated, namely, how do we conceive of constitutionalism, and what do we mean by critique. To the extent that these questions are addressed in the literature, they are generally seen as the continuation (albeit with modifications) of debates and conceptual apparatuses that have their antecedents in the nation-state phase of constitutionalism. This, though, significantly underestimates both the ways in which our understanding of constitutionalism and critique are recast by the advent of globalization, and how grappling with the nature of these changes is crucial to engendering a more transformational mode of constitutional discourse. Accordingly, here we draw attention to a different vein of scholarship which takes as its primary reference point the inception of a distinctive critical school of thought in debates over globalization; this applies to the constitutional sphere the argument that in presenting the neoliberal manifestation of globalization – in shorthand, globalization from above – as globalization simpliciter, this mistakes the part for the whole by omitting the multifarious phenomena of contestation and resistance captured under the rubric of globalization from below. This 140

Critical theory  141 leads to a fuller understanding of constitutionalism – at whatever level – as always already composed of constitutionalism from above and below. This second approach opens up critical constitutional debate in two key ways. First, it is as much concerned with asking questions over, as well as within, the existing constitutional rules (Tully 2002), thus expanding the frame of constitutional reference to focus also on what is habitually excluded (such as the pre-existing and often complex indigenous rules of governance in colonized lands (Young 2000)), and why this is not deemed to be of constitutional interest. In doing so, it invokes the insight that ‘[our] institutions reflect our basic perceptions of the world’ (Eisenstein 2013, p. 3), returning us to core existential questions including the nature of the self, and how we constitute meaning. While not uninterested in matters of institutional design, this approach is primarily interested in exploring the constitutional implications of a change of mindset which no longer answers these questions in terms of Enlightenment assumptions about the bounded self, but instead takes seriously the idea that we are more relationally connected, at an ontological level, than is generally understood. In this chapter, we compare those approaches which grow out of critical analyses of constitutionalism and globalization respectively, and their implications for recovering any kind of critical constitutional project (Schneiderman 2011). With regard to the first, we explore two distinct schools under the heading of ‘New Constitutionalism’ – one focusing on bills of rights, the other on economic phenomena – each of which, in different ways, engages global constitutionalism by showing how the latter vindicates lines of critique that originated in pre-global settings. While each (justifiably) aspires to the label ‘new’ by developing their argument in the global context, there is considerable overlap with national scholarship in terms of its prevailing constitutional epistemology, which, in emphasizing the hegemonic aspects of global constitutionalism, often leaves little room to outmanoeuvre a pervasive structural fatalism. In contrast, the second approach sees the key to reinvigorating critical constitutionalism as revisiting some basic ontological presuppositions at the root of Western modernity, which it views as limiting the scope of any critical project. Here, we outline the ramifications of reintroducing constitutionalism from below to the constitutional frame: this not only provides a richer and fuller account of the nature of constitutionalism, but, in answering the existential questions above from within a paradigm of thoroughgoing relationality, creates the fluidity and space for imagining that another constitutional world is possible.

NEW CONSTITUTIONALISM(S) The two most significant early critical engagements with global constitutionalism each describe themselves in the phraseology of the new constitutionalism (Mandel 1998; Hirschl 2004; Gill and Cutler 2014a). Although ostensibly focusing on different phenomena, and emerging from different intellectual traditions, there are strong family resemblances between them that analyse global constitutionalism in terms of its bounded nature. The first addresses the proliferation of constitutional charters of rights, and, in contrast to the liberal narrative of global democratization, portrays this as the advent of ‘juristocracy’ (Hirschl 2004) whereby political, economic and judicial elites deliberately pursued rights-based strategies to shore up their power and influence. The second recasts economic globalization in constitutional terms, outlining how the rules of the global economy operate as higher norms on policy-making processes of nation-states (Gill and Cutler 2014a). While located in separate scholarly litera-

142  Handbook on global constitutionalism tures – domestic constitutional critique and critical international relations theory, respectively – underpinning each is an analysis of global constitutionalism as placing binding constraints on the capacity of majoritarian institutions to reverse these processes. Between them, both accounts of the new constitutionalism have brought an important critical presence to debates on globalization and constitutional law, countering more aggrandizing and technical accounts with a persistent interrogation of constitutionalism’s political impact. In doing so, critical theory furnishes a rich account of how constitutional means have elevated neoliberalism to the default model for global economic and political governance (Schneiderman 2002; Nicol 2010). However, the emerging portrait of a hegemonic constitutionalism which reinforces hierarchies of power, at the same time as closing down the scope for political alternatives, raises doubts as to how we can ‘move into that solid domain and ask questions’.1 One such question is, where does the new constitutionalism leave the idea of a critical constitutional project? Situating this question in critical constitutional theory more generally enables us to view the new constitutionalism as the final vindication of critiques first advanced by domestic critical scholarship. However, as these critiques are themselves organized around various sets of boundaries, this also brings us closer to comprehending their limits for any project of critical reconstruction. These boundaries give meaning to what has been the dominant conception of critique in constitutional scholarship, but as we will see, they tend to maintain an epistemology of bounded constitutionalism within which it is difficult to recover any reconstructive critical project. New Constitutionalism in the Context of Critical Constitutional Theory In the pre-global age, critical constitutional theory both acquired its meaning and derived its bearings by recasting liberal narratives of constitutional law in terms of a series of distinctions which sought to illuminate questions of power relations generally occluded in constitutional discourse. Most prominent among these was the distinction between law and politics, or legal and political constitutionalism, which was deployed to criticize the idea that law is superior to politics upon which was premised the contemporary rise of judicial review and the presentation of adjudication as the optimum means of deciding constitutional disputes (Tomkins 2005, p. 14). Related to this was a critical analysis of constitutional rights as maintaining a public–private divide as sustaining the (flawed) idea that the principal threat to freedom came from governmental power, and that consequently the primary role of the courts is to protect the individual’s zone of freedom (Seidman and Tushnet 1996, pp. 61–71; Bakan 1997, pp. 47–8). Further moulding each was an interrogation of the separation of the economic from the political within liberal democracy, which, channelling the realists’ concern with the actual operation of power in society (Hale 1943; Griffiths 1979, p. 5), questioned the legitimacy of constitutional arrangements which subjected governmental institutions to often searching constitutional scrutiny, but not the significant power wielded by and through the market (Ewing 2001). Thus, the role of the critic was clear, namely, to defend the first part of each dyad: legislative taming of judicial laissez-faire attitudes, the expanding of the public sphere



1

I am grateful to Saskia Sassen for this formulation.

Critical theory  143 to curtail the more invidious aspects of private ordering, and subjecting market excesses to democratic regulation. Each of the three divides plays a crucial role in giving meaning to new constitutionalism’s critique of globalization. For those tracking the exponential growth of charters of rights and constitutional review, a key element of their argument was to show how political, economic and judicial elites around the world appeared to confirm critical intuitions about the relative institutional capacities of legislatures and courts by their resort to legal constitutionalism in order to protect in the courts – whether minority white economic power in post-apartheid South Africa, or Anglophone business interests in Quebec – what was regarded as vulnerable to challenge through majoritarian democracy (Hirschl 2004, pp. 50–99). Others, whose main focus was on the constitutional implications of economic globalization, charted not just a shift in the location of the public–private boundary, but of an attempted redefinition of the former in terms of the latter. Thus, the legal establishment of neoliberalism through bilateral investment treaties could be seen to have constitutional effect both in narrowing the range of considerations guiding governmental action, from the broader public interest (and which could justify expropriation) to the concerns of investors, and of removing decision-making power to institutions of the market such as commercial arbitration panels (Schneiderman 2008, pp. 69–70). An important consequence of this was seen as not just maintaining the divide between the economic and the political, but reducing the scope for the latter to constrain the former, and so facilitating the spread of neoliberal practices of privatization and marketization to more areas of social life (Gill 2014, p. 38). This analysis augments genealogies of the new constitutionalism which situate its origins in international relations theory to distinguish it from accounts of global constitutionalization as the (welcome) triumph of liberal democracy. Rather, its emphasis on ‘class, power and global inequality’ (Di Muzio 2014, p. 81) can also be viewed as a distinct, but integral, branch within the existing family tree of critical constitutional theory. As such, we can characterize both domestic critical theory and new constitutionalism as resisting attempts to unravel the post-World War II consensus on the welfare state and the mixed economy. It is the methodological priority accorded to international political economy as the ‘structuring agent’ (Schneiderman 2002, p. 244) for global constitutionalism that forms the common root for both versions of the new constitutionalism, and opens up the space for cross-fertilization between them. Thus, critics of constitutional rights argue that attention to the ‘ideological atmosphere’ (Hirschl 2004, p. 147) in which their interpretation unfolds reveals the ‘affinity’ between a negative conception of rights and the ‘presently ubiquitous neoliberal, small-scale social and economic world-view’ (Hirschl 2004, p. 154). Similarly, analysts of economic globalization have elaborated how the constitutionalist doctrine of the rule of law, in particular its ‘[formal] requirements of equality and generality’(Schneiderman 2008, p. 206) dovetails with the international investment rules regime to ‘restrain state regulatory capacity to unreasonably upset expected returns on investment’ (ibid., p. 212). New constitutionalism’s major contribution to debates on global constitutionalism is accordingly to ensure that questions of power, particularly economic power, are at the heart of constitutional discourse. It offers a compelling counter-narrative to that which views globalization as conducive to the long-term spread of democracy and human rights (Howard-Hassmann 2005), and the constitutionalization of international economic law as a necessary condition for promoting individual freedom (Petersmann 2006). Instead, new constitutionalism views the emergence of neoliberalism from the early 1970s as a coherent political and constitutional

144  Handbook on global constitutionalism project, whose aim was to supplant the social constitution that had prevailed during the middle part of the twentieth century (Ewing 2000, pp. 417–20). The global escalation of this project in the service of a ‘neoliberal international’ (Wacquant 2004, p. 100) can be seen as the catalyst for the emergence of new constitutionalism. Describing neoliberalism in constitutional language here goes beyond semantics; in mapping the transition between different constitutional time-frames, new constitutionalism seeks to instil a deeper understanding of the power dynamics by which distributive choices are institutionalized (Schneiderman 2013, p. 5), which includes more traditional constitutional schema, but also goes beyond them. This broader understanding situates constitutional discourse within the wider field of contemporary globalization, with important consequences for any critical constitutional project. On the one hand, this extends analysis of globalization as a ‘field of struggle’ (Schneiderman 2008, p. 47) to its constitutional dimension, and so, at a theoretical level, rendering the product of this struggle as deeply contingent rather than the working out of some ineluctable purpose. However, on the other, the picture of actually existing global constitutionalism that emerges reveals ‘a field that is tilted decidedly in one direction’ (Schneiderman 2008, p. 47), and moreover one that seems intent on reducing its contingency as far as possible. Empirical analyses of charters of rights and judicial review emphasize their now near global sway (Hirschl 2014, p. 95), and also the high percentage of cases before final courts of appeal which uphold arguments advancing negative rights and notions of the deregulatory state (Hirschl 2004, pp. 103–8). As such, critical empirical disquiet and liberal normative ambition seem to point to ‘a world [that] is converging on one [constitutional] model’ (Schneiderman 2002, p. 210). Critics of economic constitutionalization also stress its exponential growth, now extending to more than 2,800 bilateral investment treaties (Schneiderman 2014, p. 172). They warn that rather than viewing globalization as ushering in an era of uncertainty and flux, its manifestation through trade agreements discloses a high degree of legal fixity whose aim is ‘freezing existing distributions of wealth, and securing certainty for already affluent economic interests’ (Schneiderman 2008, p. 205). Furthermore, the constitutional status of these treaties is underscored by their onerous termination clauses, designed to ensure their long-term stability, and protect against repeal (Schneiderman 2008, p. 37). In many ways, new constitutionalism shows how the idea of bounded constitutionalism is taken to its zenith by the forces of neoliberal globalization; the lines between the legal and political constitution, the public and private and the economic and the political are viewed less as being drawn in the wrong place, but more as being obliterated as the first pole consumes the second in limiting states’ capacity for deviation. This is of huge consequence, as the traditional route for progressive change – pressuring for legislative change within the political constitution – has no obvious analogue at the global level (Schneiderman 2008, p. 221). While some critics hope that this state of affairs will be a spur to action, and indeed one of the reasons it is important to label such developments as ‘constitutional’ (Schneiderman 2008, p. 5), the account of a hegemonic constitutionalism can often seem ‘very impenetrable’. All of which poses the question of whether new constitutionalism’s tragedy is to highlight the necessity of a critical constitutional engagement in the global age, while reinforcing the intractable nature of the problems such an engagement faces. To address this, we turn now to consider the importance of how we understand constitutionalism for the prospects of developing a critical constitutional project.

Critical theory  145

CONSTITUTIONALISM FROM BELOW The Limits of Western Critical Theory The question of how to renew critical resources in the global age is not faced by new constitutionalism alone. There is more generally a palpable crisis of critical confidence exemplified by the response to the 2008 financial crisis. When Keynesianism suffered what became its terminal crisis in the 1970s, its opponents had a ready-made neoliberal prescription (Monbiot 2016); however, a moment when critical warnings about unfettered global capital seemed to have come home to roost has instead been marked by the ‘strange non-death of neoliberalism’ (Crouch 2011). Boaventura de Sousa Santos sees this inability to construct a viable alternative as reflecting a deeper malaise within critical theory, or more accurately Western critical theory. For Santos, mainstream critical theory tends to regard its own, northocentric, experience as providing a universal template, and consequently as exhausting its range of options. Accordingly, Santos contends that to generate a more convincing response to neoliberal globalization, critical theory must create some distance from the well-travelled paths of the Western critical tradition (Santos 2014, pp. 19–20). His argument raises the possibility that light may be shed on the situation, not by considering the ways in which new constitutionalism differs from the traditional state-orientated approach, but rather the ways in which it is similar. Our point of departure is to unpack why new constitutionalism developed as a critical constitutional theory, that is, why not the ‘new politics’, or the ‘new global political economy’? It is evident from the new constitutionalist literature that the constitutional matters to critical theory. Thus, detailed quantitative analysis of the outcomes of constitutional adjudication, for example as favouring notions of positive or negative freedom, seems to assume much turns on how such cases are resolved. This impact is not only measured in terms of cause and effect in the instant dispute, but also at the level of legitimating prevailing ‘metanarratives’ (Hirschl 2004, p. 172) such as neoliberalism. In a similar vein, new constitutionalist accounts of economic globalization which highlight the increasing commodification of society (Cutler 2014), and the attendant colonization of politics by the logic and forces of the market (Brodie 2014; Gill 2014, pp. 38–9), rest on the implicit premise that it would be of consequence if the global constitutional mainframe were organized on different principles. It is important to situate this discussion in the widely held view, in the national context, that the critical task is to eschew the constitutional and instead concentrate energy upon the political (Griffiths 1979; Mandel 2000–2001). If what critics previously saw as political ground is now necessarily constitutional ground (Arthurs 1999), then if, in a time of globalization, there is to be a critical project worth speaking of, it would also seem to be a critical constitutional project. When we consider how constitutional forms affect the outcomes critiqued by new constitutionalism, it is again striking how far its epistemological framework, couched in the language of limits, hierarchy, review and entrenchment, resembles that of national constitutionalism. In particular, it exhibits a positivistic outlook, whether in depicting the sources of the new constitutionalism in formal terms, necessarily possessing an (national or supranational) institutional imprimatur, or regarding those sources as external to, and imposing concrete restraints upon, the national social and political fields being reshaped. In either sense, constitutionalism is perceived through the lens of some core assumptions that have shaped the Western understanding of law: that law functions as an instrument for realizing particular ends; that law does, or at

146  Handbook on global constitutionalism least, can embody universal values; and, that ‘law is best understood through “top-down” perspectives’ which emphasize the primary creative role of elites (Twining 2009, p. 6). The latter point is of crucial importance: it gives substance to the intuition that new constitutionalism’s openness to expanding constitutional knowledge meets some innate barriers, speaking to its difficulty in imagining law outside the Western canon. In giving content to this intuition, it is helpful to adapt Upendra Baxi’s three-part account of constitutionalism’s ‘forming practices’: the first represents historically enacted formal documents, the second stands for ‘constitutional hermeneutics’ or interpretation, and the third is ‘the set of ideological sites that provide justification/mystifcation for constitutional theory and practice’ (Baxi 2000, p. 1188). Baxi’s schema offers a fuller account of constitutional phenomena than most domestic literature (often focused on developing legal doctrine), but seems initially consistent with new constitutionalism’s emphasis on the rise of global neoliberalism as an important constitutional ‘conditioning framework’ (Schneiderman 2002, p. 244). However, his interest in tracing ‘a genealogical understanding of constitutionalism’, together with his emphasis elsewhere on illuminating the ‘logics of exclusion’ (Baxi 2008 [2009], p. 44) within Western thought, point to a fourth, overarching, forming practice which can accommodate seemingly intractable opposites, such as new constitutionalism and neoliberalism, and which for much constitutional theory, critical and otherwise, takes as unproblematic the ontological bases of Western modernity. This fourth forming practice requires us to engage with the idea that ‘all world-views are manifestations of existential attitudes’ (Mendieta 2003, p. 4), and so to re-examine whether the stock answers within critical theory to the existential questions posed in the introduction – about our understandings of how we are in the world and the meaning we attach to them – which often unconsciously draw upon modernist assumptions, now need to be revisited. For some critics, the instability that has accompanied contemporary globalization, and its concomitant complexities, is indicative that we are leaving a time of reflective equilibrium, and instead must now ‘dwell sensitively in historically significant, forking moments’ (Connolly 2011, p. 165) that require a reimagining of the human (and global) condition. This prioritization of the ontological is relatively underdeveloped within critical constitutional scholarship, which tends to situate its engagement at Baxi’s third level of ideological sites. However, the emergence of distinctive voices from the global South as part of the critique of globalization is giving a new prominence within critical theory to the connections between ways of being in the world with ways of making the world. Central to this approach is the claim that Western modernity does not exhaust possible ways of understanding the world (Santos 2014, p. 20), and that moreover, retaining this understanding presents a major obstacle to constructing a viable alternative to neoliberal globalization (Santos 2002, pp. 1–4; Dussel 2008, p. 87; Mignolo 2011, pp. 44–52). Regarding attitudes to modernity as the principal critical fault-line for the global age creates a number of problems for critical constitutional scholars. Shifting attention to the ontological level suggests that in important ways critical theory may not be so different to its object of critique. Thus, while neoliberalism and its opponents fiercely dispute how material wealth should be allocated, for both economic growth is important in itself, which reflects a Eurocentric view of human entitlement to exploit nature (Santos 2014, p. 23). Moreover, for both critics and their opponents, the Enlightenment faith in autonomous reason to guide societal progress remains embedded in their attachment to abstract theorizing (Gray 1995, p. 217), notwithstanding the disconnect between theory and experience for much of the planet

Critical theory  147 (Santos 2014, p. 22). Perhaps most fundamentally, critical theory has been largely inattentive to the association of modernity with the colonial project in much of the non-West, where its universality rhetoric is seen more as a means of reinforcing relations of domination, rather than their emancipation (Mignolo 2011, pp. 2–3). Accordingly, for the global South, advancing any critical constitutional project goes hand in hand with adopting a different world view at this fourth level of constitutional forming practices, one which can ‘usher new concepts and experimental actions into the world that show promise of negotiating unexpected situations’ (Connolly 2011, p.165). Constitutionalism from Below as a Paradigm of Relational Constitutionalism The construction of a new paradigm of globalization is precisely the task which the Southern-orientated scholarship under the rubric of ‘globalization from below’ sets for itself (Santos and Rodríguez-Garavito 2005a). At the core of this enterprise is the imperative to overcome ‘the habits of separation’ (Eisenstein 2013, p. 105) which permeate modern thought, whether in seeing the ‘common interest [as] based on the pursuit of self interest’ (Santos 2009, p. 11) or in reifying divides between nature and society, public and private, or immanence and transcendence (Santos 2009). One important area where globalization from below finds a mindset of separation prevailing is in the equation of globalization only with its most hegemonic form of neoliberalism; instead, it seeks to complement this partial account by introducing a ‘bottom-up perspective’ (Santos and Rodríguez-Garavito 2005b, p. 4) into the analysis. There is certainly a strong political aspect to this argument, as grass-roots actors in globalization from below, such as social movements, are often presented as the more promising agents for challenging neoliberalism (Munck 2007); but it is important to see that this argument reaches further. For Santos, adverting to globalization from below shows that globalization is organized around two sides of the same line; accordingly, any attempt to privilege the most visible (hegemonic) side is only fully intelligible by adumbrating what it excludes (Santos 2014, pp. 124–33). In turning to the implications of the foregoing for the constitutional debate, it is instructive to remember that, at least initially, the details of any new paradigm will not be as fully worked out as that which it moves beyond. In this regard, it may be of benefit for critical theory to enter a period of ‘not knowing’, particularly in terms of how this connects up the four constitutional forming practices outlined above. Notwithstanding the urgency of the problems associated with neoliberal globalization, the insufficiency of prior critical approaches to avert the present conjuncture also underscores the need for critical thinking to address long-term change (Santos 2014, p. 28). Applying globalization from below’s modus operandi to the constitutional field enables us to see that what is often referred to as global constitutionalism (including by scholars of the new constitutionalism school) is more accurately labelled constitutionalism from above. However if, extending the analysis of those advocating globalization from below, Western constitutionalism ultimately derives its meaning from what is systematically omitted, then constitutionalism from above necessarily exists in relation to constitutionalism from below (Anderson 2015, p. 159). This approach to scholarship, not on what is to be separated out, but on the connections that are often missed, forms the basis for a relational paradigm of constitutionalism. This has significant implications for critical theory, as it broadens the knowledge base of constitutional theory, restoring much of what modern constitutionalism sought to expel. By focusing on

148  Handbook on global constitutionalism how this transforms the nature of the debate, we can see that the fourth, ontological, forming practice is ultimately constitutive of constitutional discourse, with ramifications all the way down Baxi’s cascade. This broadens the scope of constitutional inquiry beyond that generally found within new constitutionalism, and in particular enables us to view much of globalization from below as seeking to effect change at the level of constitutional world view, grounded in a different conception of what it is to be human. One of the leading examples is the contemporary resurgence of the constitutional traditions of indigenous peoples (Ivison et al. 2000), which challenges top-down approaches in two important ways. Ethnographic research attests that, notwithstanding the exclusivist ambition of modern constitutionalism, the lived reality of indigenous peoples through to the twenty-first century was messier and more pluralist (Anaya 2007) on account of the sustenance of constitutional practices and ideas which preceded their encounter with European colonialism (Tully 1995; Borrows 2011). Moreover, this tradition is grounded in a distinctly non-modern ontology, which both challenges narratives about the end of constitutional history, and for some embodies principles of deep relevance to the crises of the global age. For example, the sections of the Ecuadorian Constitution affirming the rights of nature accord with the efforts of social movements to actualize ‘a non-European conception of the relation between nature and society’ (Santos 2014, p. 23). As such, the perspective from below also widens the scope of constitutional agency beyond institutions or elites to include those grass-roots actors whose aim is to change the ontological prism through which the line between the constitutional and the non- constitutional is refracted (Anderson 2013). This genealogically minded, more pluralist understanding of the sources guiding constitutional formation ‘open[s] a space for critical thought’ (Rose 1999, p. 19) through the potential interface with other disciplines which lend empirical and theoretical support to a relational paradigm of constitutional law. Thus, critical strands in psychological theory speak to the connections between assumptions about who we are, and the sort of societies we build, arguing that notions of the bounded self are ‘secreted within our institutions’ (Gergen 2011, p. 4); accordingly, any critical constitutional theory which wishes to supplant Western conceptions of bounded constitutionalism has to take seriously the idea that knowledge and meaning are only ever created through co-action (Gergen 2011, p. 40). Others advert to recent findings in neuroscience which emphasize an innate human capacity for compassion, and advocate a shift of focus in constitutional design towards the fostering of social systems which ‘will spur the emergence of an egalitarian society, motivated by compassion, and not by fear’ (Duffy 2011, p. 445). These and other developments, whether in political (Dussel 2008) and legal (powell 2012, pp. 163–94) theory, or contemplative studies (Loy 2010), are coalescing into a concerted philosophical inquiry into the basis of ‘a more promising view of our global future’ in which the world is recognized ‘not within persons but within their relationships’ (Gergen 2011, p. 5). This approach entails a major shift of approach with regard to critical constitutional theory, that is, to ground any new paradigm in the actual experience of those generally absent from the discourse. This points to a critical research agenda orientated around reintroducing the constitutional perspective from below in three crucial, interrelated, senses. First, it encourages full and proper attention to the constitutional knowledge and practices of the global South, whether innovative design in Latin America, the resurgence of indigenous constitutionalism, and more besides: as a result, Western experience is valued not because of its provenance, but in terms of its contribution to forging new constitutional alliances. Second, it opens constitutional knowledge to the vast range of phenomena such as ‘private’ actors and social movements

Critical theory  149 which fall beneath the radar of more traditional approaches, and therefore extends the sites in which relations of domination are structured and resisted beyond the formally regulated contests for the acquisition of institutional power (Day 2004, p. 723). Third, and perhaps most fundamentally, it seeks to give priority to those who have historically been below the winning line in contests over the politics of constitutional definition: the dispossessed, whether of wealth, voice or identity. It is by grappling with the question of why they became the ‘invisible people’ (Nootens 2015) of constitutional theory that the critical project can ‘reimagine the past’ (Scheingold 2010, p. 2) and remember the path towards an alternative future.

REFERENCES Anaya, J. (2007), ‘Indigenous law and its contribution to global legal pluralism’, Indigenous Law Journal, 6 (1), 3–12. Anderson, G.W. (2013), ‘The new borders of the constitutional’, Osgoode Hall Law Journal, 50 (3), 737–62. Anderson, G.W. (2015), ‘Towards a cosmopolitan pluralist theory of constitutionalism’, in U. Baxi, C. McCrudden and A. Paliwala (eds), Law’s Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining, Cambridge: Cambridge University Press, pp. 143–64. Arthurs, H.W. (1999), ‘TINA x 2: constitutionalizing neo-conservatism and regional economic integration’, in T.J. Courchene (ed.), Room to Manoeuvre? Globalization and Policy Convergence, Kingston, ON: McGill-Queen’s University Press, pp.17–37. Bakan, J.C. (1997), Just Words: Constitutional Rights and Social Wrongs, Toronto and Buffalo, NY: University of Toronto Press. Baxi, U. (2000), ‘Constitutionalism as a site of state formative practices’, Cardozo Law Review, 21 (4), 1183–210. Baxi, U. (2008), The Future of Human Rights, 3rd edn, reprinted 2009, New Delhi: Oxford University Press. Borrows, J. (2011), Canada’s Indigenous Constitution, Toronto and Buffalo, NY: University of Toronto Press. Brodie, J. (2014), ‘New constitutionalism, neo-liberalism and social policy’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 247–60. Connolly, W. (2011), A World of Becoming, Durham, NC and London: Duke University Press. Crouch, C. (2011), The Strange Non-Death of Neoliberalism, Cambridge: Polity Press. Cutler, A.C. (2014), ‘New constitutionalism and the commodity form of capitalism’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 45–62. Day, R.J.F. (2004), ‘From hegemony to affinity: the political logic of the newest social movements’, Cultural Studies, 18 (5), 716–48. Di Muzio, T. (2014), ‘Toward a genealogy of the new constitutionalism: the empire of liberty and domination’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 81–94. Duffy, J.D. (2011), ‘What Hobbes left out: the neuroscience of compassion and its implications for a new common-wealth’, in M. Freeman (ed.), Law and Neuroscience: Current Legal Issues, vol. 13, Oxford: Oxford University Press, pp. 433–47. Dussel, E. (2008), Twenty Theses on Politics, Durham, NC: Duke University Press. Eisenstein, C. (2013), The More Beautiful World Our Hearts Know Is Possible, Berkeley, CA: North Atlantic Books. Ewing, K.D. (2000), ‘The politics of the British Constitution’, Public Law, Autumn, 405–37. Ewing, K.D. (2001), ‘The unbalanced constitution’, in T. Campbell, K.D. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights, Oxford: Oxford University Press, pp. 103–17. Gergen, K. (2011), Relational Being: Beyond Self and Community, Oxford: Oxford University Press.

150  Handbook on global constitutionalism Gill, S. (2014), ‘Market civilization, new constitutionalism and world order’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 29–44. Gill, S. and A.C. Cutler (eds) (2014a), New Constitutionalism and World Order, Cambridge: Cambridge University Press. Gill, S. and A.C. Cutler (2014b), ‘New constitutionalism and world order: general introduction’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 1–25. Gray, J. (1995), Enlightenment’s Wake, London: Routledge. Griffiths, J.A.G. (1979), ‘The political constitution’, Modern Law Review, 42 (1), 1–21. Hale, R.L. (1943), ‘Bargaining, duress and economic liberty’, Columbia Law Review, 43 (5), 603–28. Hirschl, R. (2004), Towards Juristocracy: The Origins and Causes of the New Constitutionalism, Cambridge: Cambridge University Press. Hirschl, R. (2014), ‘Origins of the new constitutionalism: lessons from the “Old Constitutionalism”’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 95–107. Howard-Hassmann, R.E. (2005), ‘The second great transformation: human rights leapfrogging in the era of globalisation’, Human Rights Quarterly, 27 (1), 1–40. Ivison, D., P. Patton and W. Sanders (eds) (2000), Political Theory and the Rights of Indigenous Peoples, Cambridge: Cambridge University Press. Loy, D. (2010), ‘A different “Enlightened” jurisprudence’, Saint Louis University Law Journal, 54 (4), 1239–56. Mandel, M. (1998), ‘A history of the new constitutionalism, or how we changed everything so that everything could remain the same’, Israel Law Review, 32 (2), 250–300. Mandel, M. (2000–2001), ‘Against constitutional law (populist or otherwise)’, University of Richmond Law Review, 24 (2), 443–59. Mendieta, E. (2003), ‘Introduction’, in E. Dussel (ed.), Beyond Philosophy: Ethics, History, Marxism and Liberation Theology, Lanham MD: Rowman & Littlefield, pp. 1–18. Mignolo, W.D. (2011), The Darker Side of Western Modernity: Global Futures, Decolonial Options, Durham, NC: Duke University Press. Monbiot, G. (2016), ‘Neoliberalism – the ideology at the root of all our problems’, Guardian, 15 April, accessed 5 April 2016 at https://​www​.theguardian​.com/​books/​2016/​apr/​15/​neoliberalism​-ideology​ -problem​- george-monbiot. Munck, R. (2007), Globalization and Contestation, London and New York: Routledge. Nicol, D. (2010), The Constitutional Protection of Capitalism, Oxford and Portland, OR: Hart. Nootens, G. (2015), ‘Constituent power and the people-as-the-governed: about the invisible people of political and legal theory’, Global Constitutionalism, 4 (2) 137–56. Petersmann, E.-U. (2006), ‘Human rights, constitutionalism and the WTO: challenges for WTO jurisprudence and civil society’, Leiden Journal of International Law, 19 (3), 633–67. powell, j.a. (2012), Racing to Justice: Transforming our Conceptions of Self and Other to Build an Inclusive Society, Bloomington and Indianapolis, IN: Indiana University Press. Rose, N. (1999), Powers of Freedom: Reframing Political Thought, Cambridge: Cambridge University Press. Santos, B. de S. (2002), Toward a New Legal Common Sense, London: Butterworth. Santos, B. de S. (2009), ‘If God were a human rights activist: human rights and the challenges of political theologies’, Law, Social Justice and Global Development Journal, 13 (1), 1–42. Santos, B. de S. (2014), Epistemologies of the South: Justice Against Epistemicide, Boulder, CO: Paradigm. Santos, B. de S. and C.A. Rodríguez-Garavito (eds) (2005a), Law and Globalisation from Below: Toward a Cosmopolitan Reality, Cambridge: Cambridge University Press. Santos, B. de S. and C.A. Rodríguez-Garavito (2005b), ‘Law, politics and the subaltern in counterhegemonic globalization’, in B. de S. Santos and C.A. Rodríguez-Garavito (eds), Law and Globalisation from Below: Toward a Cosmopolitan Reality, Cambridge: Cambridge University Press, pp. 1–26. Scheingold, S. (2010), The Political Novel: Reimagining the Twentieth Century, New York: Continuum.

Critical theory  151 Schneiderman, D. (2002), ‘Comparative constitutional law in an age of globalization’, in V.C. Jackson and M. Tushnet (eds), Comparative Constitutional Law: Defining the Field, Westport, CT: Praeger, pp. 237–50. Schneiderman, D. (2008), Constitutionalizing Economic Globalisation: Investment Rules and Democracy’s Promise, Cambridge: Cambridge University Press. Schneiderman, D. (2011), ‘A new global constitutional order?’, in R. Dixon and T. Ginsburg (eds), Research Handbook on Comparative Constitutional Law, Cheltenham: Edward Elgar Publishing, pp. 189–207. Schneiderman, D. (2013), Resisting Economic Globalisation: Critical Theory and International Investment Law, Basingstoke: Palgrave Macmillan. Schneiderman, D. (2014), ‘How to govern differently: neo-liberalism, new constitutionalism and international investment law’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 165–78. Seidman, L.M. and M. Tushnet (1996), Remnants of Belief: Contemporary Constitutional Issues, New York: Oxford University Press. Tomkins, A. (2005), Our Republican Constitution, Oxford and Portland, OR: Hart. Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Tully, J. (2002), ‘The unfreedom of the moderns in comparison with their ideals of constitutional democracy’, Modern Law Review, 65 (2), 204–28. Twining, W. (2009), General Jurisprudence: Understanding Law from a Global Perspective, Cambridge: Cambridge University Press. Wacquant, L. (2004), ‘Critical thought as solvent of Doxa,’ Constellations, 11 (1), 97–101. Young, I.M. (2000), ‘Hybrid democracy: Iroquois federalism and the postcolonial project’, in D. Ivison, P. Patton and W. Sanders (eds) (2000), Political Theory and the Rights of Indigenous Peoples, Cambridge: Cambridge University Press, pp. 237–58.

12. The English School and global constitutionalism Filippo Costa Buranelli

INTRODUCTION The idea of ‘global constitutionalism’, understood as a constitutional political and legal order which enables and constrains political decision-making by placing limits on political life through its emphasis on the rule of law while also enabling the creation of new institutions and laws in moments of founding and in practices of interpretation (Lang and Wiener, Chapter 1 in this Handbook) has always been a distinctive mark, albeit perhaps in nuce, of the ES. The very premise of this theory, as a matter of fact, is based on the idea of sociability between states (or, to be more trans-historically correct, polities), which to a minimum agree to find a modus vivendi and mutually acceptable arrangements, through the development of formal and informal norms, rules, and institutions. Yet few ES authors have dealt with global constitutionalism, let alone Global Constitutionalism,1 directly (for an exception, see Clark 2007; Hurrell 2007; Lang 2013). How does the ES conceive of processes of constitutionalisation of world politics? How does it conceptualise the idea of a ‘constitution’ between political communities? Does it make sense to speak of global constitutionalism from an ES perspective, and if yes, what are the analytical prisms used to study it? This chapter sheds light on these questions. It does so by following four steps. The first one is to present the reader with a short overview of ES theory – its main tenets, its concepts, and its specific take on international relations. The second step is tasked with reviewing what scholars working within the ES tradition have said about the idea of constitutionalism, and to what extent their theorisation of international society has been informed by its ideas. Here, ES arguments about (global) constitutionalism are compared to those offered by the Italian constitutional jurist Costantino Mortati (1891–1985), who in his theory of ‘material constitution’ (1940) sought to reconcile the legal with the political. The third step, more analytical in scope, discusses three prisms through which the ES looks at global constitutionalism – the pluralism-solidarism distinction; the relationship between primary and secondary institutions; and the interplay between international society and world society. The fourth and last step is to indicate some of the current and, possibly, future research areas that an ES approach to global constitutionalism may consider – the regionalisation of international society, the polysemy associated to it, and the embedded pluralism that is being enhanced by such process; the rise of Global IR as a research programme; and the increase

1 For the purpose of this chapter, ‘global constitutionalism’ (lower case initials) refers to processes, dynamics, practices and trends pertaining to the establishment of a constitutional framework/structure in world politics, whereas ‘Global Constitutionalism’ (capitalised initials) refers to the interdisciplinary academic field studying such issues.

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The English School and global constitutionalism  153 prominence of power politics and the related attempts to change the current structure of international society.

THE MAIN TENETS OF THE ES In order to set the argument clearly and to give those readers not necessarily acquainted with the ES a conceptual map, this first section will briefly illustrate the main features, or aspects, of ES theory and its research programme. First and foremost, the ES conceives of world politics as a tripartite realm – an international system, where inter-state anomic relations operate; an international society, where ‘a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions’ (Bull 1977, 13); and a world society, where non-state and transnational actors operate. These three domains, discerned for analytical purposes, are in fact intertwined and are to be thought as in constant interplay, dialogue, and as mutually influencing each other. Second, the ES thinks that in international relations there is more than a realist would think, and less than a liberal would hope for (Linklater and Suganami 2006). It is an environment in which organised communities do not live in a Hobbesian state of nature, in constant competition and dealing with violence daily, nor in a cosmopolitan Kantian kingdom of ends. The very idea of an international society is one that accounts for norms, rules and institutions, which, if not always respected and followed, direct and constrain the behaviour of such communities in their intercourses and relations. These institutions, in ES thinking, are conceived of in two different, yet related, ways. The first meaning of institutions, socio-anthropological, is that of rooted, durable but by no means eternal codified practices which channel the behaviour of the states (or, in general, actors) forming the society, giving a sense of order and predictability to their actions (Buzan 2004). They define the socio-structural context where actors operate, and who the legitimate actors are within that context, too. These are primary institutions, such as diplomacy, the balance of power and international law. The second meaning, more akin to neoliberal institutionalism and regime theory, is that of international organisations and regimes. These are secondary institutions. More on this, however, will be said below. The third aspect of ES theory pertains specifically to the idea of international society itself, which can assume a pluralist or a solidarist configuration (even if, as recent research as show, these are better conceived as an interplay as opposed to two dichotomic ideal-types – for different conceptualisations of this interplay, see Bain 2021; Buzan 2004; Weinert 2011). Pluralism and solidarism are two normative, ethical, and moral schemes that serve to frame and individuate the goals of the society of states itself. Pluralism pertains to a communitarian ethics, premised on the idea that the absence of any moral authority in international society means that states are the ultimate arbiters on the meaning of ‘the good life’ within their domains. This results in a strict embracement of principles of non-interference and non-intervention, on a minimal, often procedural set of norms to agree upon, and on the value of cultural diversity and plurality of worldviews. Solidarism, on the other hand, pertains to the idea that states are capable of advancing sophisticated forms of cooperation that benefit them and humanity as well. Solidarism thus rests on a more cosmopolitan ethics, strongly incorporates the domain of

154  Handbook on global constitutionalism world society within international society, and is bearer of a more progressive, emancipatory agenda. The fourth and, for the purpose of this chapter, last aspect of the ES as a theory of international relations is its accentuated humanism and holism. It emphasises the role that co-constitution plays in world politics, thus accounting for both agency and structure; it stresses the pivotal importance of law, philosophy, history and political theory in the pursuit of explaining and understanding international relations; and it ascribes equal importance to power and morality in world politics, as well as to order and justice. From the above, it is evident that, within the IR theory panorama, the ES is in an advantaged position to synthetize and integrate the multiple views of global constitutionalism (and, consequently, the different strands of Global Constitutionalism) identified by Jeffrey Dunoff and colleagues (Dunoff et al 2015) – as a political theory, as a moral project, as a legal process, and an institutional development.

GLOBAL CONSTITUTIONALISM IN ES SCHOLARSHIP As stated in the introduction, since its very inception scholars working within the ES tradition have been interested in processes of constitutionalisation of world politics as well as in the existence of defined constitutional structures, defined as ‘a set of fundamental and prioritised principles and rules that serves as a framework for the self-ordering of relations between polities’ (Muller 2014, 73). Martin Wight, for example, was among the first to reflect on these issues by drawing on a rationalist understanding of international relations supported by his Christian realism and its related middle-ground ethics, defined as ‘a move toward compromise, an effort to find a middle-ground between those who disagree’ (Navari quoted in Lang 2013, 114). It was Wight, in fact, who first coined the expression ‘middle-ground ethics’ when addressing the role of Western values in contemporary world politics (Cochran 2009; Wight 1966) and who identified in the charted of the League of Nation ‘a constitution’. Another prominent ES scholar who much contributed to incorporating and developing ideas of constitutionalism was Maurice Keens-Soper, who clearly recognised the role that deeper institutionalised practices played in fostering a sense of constitutionalisation of world politics across history (Keens-Soper 2016). Although very much Eurocentric (more on this in the last section of this chapter), Keen-Soper’s argument was premised on the idea that relations between political communities have always been conducted within what he calls ‘a framework of some kind’, which ‘has to be seen not as an empty shell circumscribing and setting limits to the play of political forces, but as intimately and pervasively related to the substantive issues arising between states’ (2016, 28). He further argued that even before Westphalia, the fact that Europe was known as a ‘respublica Christiana’ hinted at the fact that the idea of a ‘respublica’ is necessarily paired with that of a constitution, being both terms borrowed from liberal political theory and tradition. He also argued, passim, that ‘Europe got a novel “constitution”’ (2016, 29), that international politics in the continent were premised on discernible ‘constitutional’ arrangements (2016, 30), and that such constitution was ‘composed of “institutions”’ (2016, 32). This importance of the historicisation of constitutional forms and principles has recently been noted by Thomas Muller, when arguing that ‘[a] crucial consequence of [the] characterization of global constitutionalism as a contemporary new phenomenon is the largely missing

The English School and global constitutionalism  155 historicization of constitutional forms in the international realm’ (Muller 2014, 72), thus emphasising the synergy that exists between the ES and the historical comparative approach (which, similarly to Keen-Soper, was that endorsed by Martin Wight and, perhaps even more so explicitly, by Adam Watson, another key ES author). This understanding of constitutionalism was then shared, in different forms, by other ES scholars, such as Donald MacKinnon and Hedley Bull, who, supported by his epistemological scepticism and conservatism, made the case that international society as an empirical fact is premised on three layers of normative precepts, an idea he took from H.L. Hart: constitutional normative principles, rules of coexistence and regulative rules (Bull 1977). Other prominent ES authors have used constitutional categories to analyse world politics from an ES perspective. Cornelia Navari, who apart from her work on middle-ground ethics, has resorted to the concepts of ‘compacts’ and ‘packages’ to illustrate the normative substance of international society (Navari 2016). Also, James Mayall defined the workings of international society and the interplay between power and morality within it as ‘constitutional arrangements’ (Mayall 2016). Furthermore, the work of scholars such as Robert Jackson has very much hinted at the deep relationship that exists between the ES and Global Constitutionalism. One of his books, The Global Covenant, illustrates this aptly – the idea that, even in the absence of a world government, states and societies have been able to devise a normative structure that, when not stymying illegitimate behaviours, at least induces them either to apologise for doing so or offer a justification. In more recent times, both Ian Clark (2007) and Andrew Hurrell (2007) have focused heavily on how the ES, de facto, incorporates fundamental ideas at the centre of global constitutionalism. Clark has grounded his work on the idea of constitutional legitimacy, which revolve around the two legitimacy principles of ‘rightful membership’ and ‘rightful conduct’ which, albeit not explicitly, remind one of Reus-Smit’s (Reus-Smit 1997, 556) two functions of constitutional structures: defining legitimate actorness and ‘the basic parameters of rightful state action’. The echoes of global constitutionalism are even more audible in that Clark (2005, 2, emphasis added) defines his legitimacy principles as ‘rudimentary social agreement about who is entitled to participate in international relations, and also about appropriate forms in their conduct’. It is the very idea of a social agreement, as a human product of reason, that constitutes a direct link with the tradition of global constitutionalism, albeit arguably from a more political, as opposed to legal, perspective. Hurrell, too, has very much made the case for a progressive constitutionalisation of international society, arguing that a pluralist understanding of world order is not morally tenable anymore and that it is through solidarism that one can see the progressive constitutionalisation of world politics, as a legal but most importantly as a moral project. This, according to him, has been mostly visible in the ‘failure’ of pluralism to advance world politics and human emancipation in the two areas of human rights and environmental stewardship. The above discussion provided only a snapshot of how past and contemporary authors who have contributed to ES theorising conceive of the idea of constitutionalism, and its applicability to the global domain. The gist of the ES understanding of global constitutionalism is that the ES embraces an idea of law that is deeper than the positivistic one, although not necessarily rejecting the latter. It is an expression of something deeper. It is thus possible to distil some main features of this understanding. First, the ES considers ‘constitutional’ not simply in legal terms, but also, and one may say especially, in sociological ones in the sense of constituting – the very idea of defining legitimate players and legitimate identities within the context of international society. This

156  Handbook on global constitutionalism very well stresses the fundamental enabling function of constitutions, as opposed to a merely prescribing one. This idea is embodied in the very concept of institutions, norms and rules, that through the practice and intersubjective understandings of state representatives creates a legitimate framework of action. This is enucleated in one of the pivotal, yet still underappreciated, concepts at the heart of ES theorising, that of raison de systéme, which implies that political communities, alongside their individual interests, are aware of the systemic, pluralistic interest(s) of the other communities, too, and acknowledge that their interests and the stability that protects them are best served by abiding by the constitutional structures at play (Keens-Soper 2016; Watson 1992). Neatly encapsulating the idea at the core of an international society, and therefore of a covenant, raison de systéme can be defined as ‘the belief that it pays to make the system work’ (Watson 1992, 14). Second, and related to the above, the ES places diplomacy at the centre of these constitutional structures, for it is through diplomacy that common practices, mutual understandings, compromises, and accommodation of differences can be achieved. Indeed, as has been noted, within an ES understanding of global constitutionalism it is diplomacy which serves as an exemplification of middle-ground ethics, which places compromise as the ultimate good. Tellingly, Keens-Soper (2016, 38, emphasis added) maintained that Purposes and therein ‘thought’ are to be detected not merely in the pursuit of the expressly formulated and justified determinations of foreign policy but equally, through differently, in the practices upon which the ability to pursue the substantive ends of policy are themselves dependent. By way of analogy, in constitutionalism, the content of any legislation is unimportant; it is the procedures that matter. And diplomacy is to foreign policy what constitutionalism is to legislation.

Third, due to its focus on co-constitution as well as the interplay of morality, power, and politics, the ES de facto de-essentialises constitutionalism as a given and renders it a process,2 subject to historical contingency, contextuality, and waxing and waning. The constitutional structures, or orders, across history arise, develop, change and demise – and, with them, their underpinning practices and institutions. Therefore, it can be said that because of its ontological, epistemological, and methodological toolkit, the theory is able to investigate the structure and the content of the current global covenant (the contemporary existing order) as well as those practices and normative principles that are slowly assuming a constitutional, prescriptive character without necessarily having reached codification. Considering constitutional theory, I argue that the above are interesting parallels that connect the ES with the idea of ‘material constitution’ advanced by the famous Italian jurist and constitutional theorist Costantino Mortati (Mortati 1940).3 As a matter of fact, Mortati tried to ‘reconnect the juridical with the political’ advocating for an approach to constitutionalism that would ‘legalise the political through reference to constitutional principles and Which, crucially, is not teleological. Costantino Mortati (1891–1985) was a constitutional jurist, theorist, and academic, who participated in the Italian Constitutional Assembly (1946–1948) after the fall of the Fascist regime and served as judge of the Italian Constitutional Court, of which was also vice-president. Strongly influenced by German organicism and by French and Italian institutional pluralism, and constantly attempting to mediate between the historical-political orientation of Franco-British origin and the legal positivistic tradition with German roots, Mortati saw in the concrete and historically situated ‘dominant order’ the fundamental element of a constitution. His writings, especially those about comparative constitutionalism and public law, are still considered relevant today (Rubinelli 2019). 2 3

The English School and global constitutionalism  157 values, supported by the force or group of forces that are at the basis of the legal system’ (Lanchester 2012, no page). As we shall see, this conceptualisation of constitutionalism, rooted in practice and experience and not in aprioristic assumptions (à la Lauterpacht, who identified this assumption in the civitas maxima), is helpful in illustrating an ES understanding thereof (although crucially not the only possible one), not far from the socio-legal tradition of George Schwarzenberger (who, incidentally, was a contemporary of Mortati) (Navari 2021a, 137–40; see also Navari 2019, 68–72). As a matter of fact, for Mortati, the constitution was not necessarily ‘the spring of the law’, from which other laws and norms flow, as was Kelsen’s Grundnorm or Schmitt’s decision. Rather, it was an expression of the interests, power relations, priorities, and goals of different social actors. It is clear that this is a dynamic, processual reading of the constitution, as opposed to a static one, which very much is in line with the idea of ‘international society’ and its idea of (global) constitutionalism.4 According to Mortati, the heart of the ‘constitution’ was the appreciation, in a unitary way, of the various interests that gather around the state. Although not a positivistic document, the material constitution understood by Mortati was nonetheless juridical, for the material constitution could ‘transfer itself in the formal constitution, which consequently stabilises and warrants the balance of power and the political goals of the material constitution’ (Pinelli 2010, no page, emphasis added).5 For Mortati, therefore, as well as for the ES, the idea of a fundamental, unwritten, and political constitution understood as a balance of different interests, goals, and moral positions necessarily predates any formalisation of it, and lends itself to diachronicity, contestation and change, reminding us that every constitution is, at the same time, stability and tension. A tension that is primarily political, residing in the creation of boundaries and areas of legitimacy, ‘between inside and outside and between what counts as politics and what doesn’t’, which is a reminder that for the ES the analysis and the operation of order and constitutional structures is primarily ‘about the power politics of these constitutive processes’ (Hurrell 2021, 40). This is in line with Navari’s argument who maintains that ‘the constitution of the international order does not serve particular masters: it represents rather a particular balance of achievable goals among power equals, near equals and unequals’ (2019, 69, emphasis added). The logical conclusion of these arguments is, with timely relevance for the recent shifts in world order, that ‘power transition [in an ES sense] can be conceptualized and studied as a matter of continuity and change in the constitutive principles and reproductive practices of fundamental institutions with the superstructure of international organization as a key site and potential stimulator of such deep changes’ (Knudsen 2022, 42, emphasis added). The constitutionalism theorised by the ES is, therefore, deeper and more pervasive than mere legalisation, especially in a positivistic understanding of the law. The treaty, the charter, the covenant at play at a given time in history is only an epiphenomenal expression of more fundamental principles, norms, and rules of conduct. This is most evident, perhaps, in the institution of international law. For those theorists of global constitutionalism stressing the legal character of it, international law is the explanans, and the mover, of the processes

4 Conscious of the temptation of (yet another!) domestic analogy, I realise that the parallel with Mortati’s understanding of material constitution would require a theorisation of the analogy between states and political parties, and whether such analogy is tenable. However, here the analogy is presented simply to illustrate the broad similarity between the two approaches. 5 The emphasis on the quintessentially political character of constitutions on the international stage echoes Cox’s arguments on social forces and social orders (1981).

158  Handbook on global constitutionalism underpinning the progressive constitutionalisation of world politics. From an ES viewpoint, however, international law is both explanans and explanandum, the coalescence in the form of a primary institution of deeper and more substantial constitutional norms in a Bullian sense, such as the preservation of a society of states predicated on limits to (and regulation of) violence, establishment of property rights, and sanctity of agreements (pacta sunt servanda). If, therefore, one subscribed to the more fundamental idea of a constitution in the ES sense and, following Keen-Soper, accepts that for the ES a constitution between states is not necessarily ‘announced, signed, or proclaimed’, but is visible and operates ‘in the no less instructive reiteration in practice of shared precepts and rules of conduct’ (Keen-Soper 2016, 29), then there is also the acceptance that international law is an institution of that very constitution, and not merely its prime mover. This section has situated the idea of global constitutionalism within past and recent scholarship of the ES, showing how since the very beginning of the activities of the British Committee of International Relations scholars and theorists associated with its workings have explored issues pertaining to rights, freedoms, liberties, morality, power and ethics – both between states, and between states and people. The next section, more analytical in scope, moves towards an account of three of the main ways in which current debates within the ES are contributing to the idea, the practice, and also the problematisation of global constitutionalism.

THREE POSSIBLE WAYS TO STUDY GLOBAL CONSTITUTIONALISM FROM AN ES PERSPECTIVE Against the backdrop outlined above, this section now zooms into three specific ways in which ES scholarship has dealt with the ideas and principles of global constitutionalism. These three ways are the pluralism-solidarism distinction; the relationship between primary and secondary institutions; and the interplay between international and world society. The Pluralism-Solidarism Distinction It is now an accepted idea within ES scholarship that international society can be underpinned by two different logics of organisation, behaviour and order – pluralism and solidarism. In William Bain’s words, ‘pluralism and solidarism are framing principles for a debate about the limits of reform and the possibilities for progress in international society’ (Bain 2021, 96). The former refers to the idea that territorial communities agree on a minimum, often procedural set of principles, rules and norms to ‘live and let live’, holding to the two principles of non-interference and non-intervention. The idea of pluralism rests on a communitarian ethics, aimed at preserving and protecting cultural and moral differences, on the basis that no single culture can argue to be better than others. Conversely, solidarism refers to the idea that international society can and should be premised on enhanced and increasing cooperation between territorial communities, as well as the people inhabiting them. In a solidarist international society, sovereignty is conceived as responsibility; international law makes room for individuals; and institutions that bring together states in largely cooperative framework are developed, such as the market or environmentalism. This means that global constitutionalism from an ES perspective can be studied by paying attention at the underpinning logics, justifications, and moral claims that give birth

The English School and global constitutionalism  159 to these two compacts (Ahrens 2019), and in particular at the tensions between them, with interesting and potentially fruitful connections with legal and ethical pluralism and their connections with international law (Schmidt 2020; Swenson 2018; Williams 2015). The scholar who may want to study global constitutionalism using an ES prism may look, for example, at how state actors fight (discursively but also non-metaphorically) for a pluralist world order based on jus inter gentes, at the moment best enshrined in the UN Charter of 1945. Nowadays, it is countries like Russia and China who advocate for a ‘democratic world order’, in which ‘democratic’ is unequivocally a substitute for ‘pluralist’. Conversely, one may read the post-1990 liberal order as an attempt to project solidarist logics across the globe and to give them rule-like, jus gentium nature (Ahrens and Diez 2015; Wheeler 2000) and approach processes of global constitutionalisation as the development of institutions like humanitarian international law, environmental stewardship, and the market as ways of ‘reducing the tension between the needs and imperatives of states and the needs and imperatives of humankind’ (Bain 2021, 95). The Relationship between Primary and Secondary Institutions The second prism which the ES uses to study processes of constitutionalisation of world politics is the distinction between primary and secondary institutions. With the first one, it is usually understood as a set of durable, consolidated yet not eternal practices that inform both the identities of the legitimate actors within international society as well as their behaviour. Conversely, by secondary institutions within the ES it is usually understood as (regional) international organisations, akin to institutions as meant by regime theory and neoliberalism. The ES contributes to global constitutionalism through this angle by, on the one hand, acknowledging that there are deeper, fundamental practices that structure, regulate and inform world politics as opposed to the epiphenomenal organisations mentioned and studied by regime theorists. The analytical power of this angle is that it shows how a ‘constitution’, global or regional but in any case international (still, we are referring to inter-polities relations, to cover space diachronically), does not have to be formalised in a treaty or in an official document to exist, but can be internalised, ‘felt’, and followed by those actors who acknowledge to be bound by it through routinary practices (institutions) and discourses. On the other hand, the ES has been placing increasing importance on the role which secondary institutions play in ‘locking in’ the constitutional principles of international society – global, as well as the regional ones. While it can be argued that, in principle, secondary institutions are an empirical, physical manifestation of the primary institutions operating within an international society at a given time and space, recent scholarship has also illustrated how international organisations (secondary institutions in an ES sense) contribute to the refinement, development and change of primary institutions, thus changing de facto the content and the values at the base of a given constitutional compact in a given period of history (Friedner Parrat 2017; Navari and Knudsen 2019; Spandler 2015). Examples of this may include the emergence of international humanitarian law through the workings of the United Nations (UN), the International Court of Justice (ICJ), and the International Criminal Court (ICC) as well as regional courts such as the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) (Knudsen 2019; Schmidt 2019); the institutionalisation of environmentalism through the establishment of UN Framework Convention on Climate Change

160  Handbook on global constitutionalism (UNFCCC); and the evolution of the meaning of sovereignty in a solidarist sense through the conceptualisation of Responsibility to Protect (R2P) following GAR/60/1 in 2005. A possible research programme on global constitutionalism from an ES perspective in this area would, for example, trace and explore the mechanisms through which secondary institutions alter, change, and enhance meanings and practices of those norms and principles that have potential global constitutional character, while accounting for power politics and interest-based behaviours in international organisations. As aptly noted by Navari (2021b, 140, emphasis added): In liberal institutional theory, phenomena such as sovereignty, balance of power, inclination to war and great power management are generally considered to be constraints on the working of IOs. In the ES understanding of institutions, they are not constraints but constitutional foundations that inform the inner mechanisms of the organisations.

Finally, recent studies working on the distinction between primary and secondary institutions at the regional level have highlighted how, in line with the embedded pluralism that seems to be underpinning the post-liberal order, it is perhaps better to start talking about constitutionalisms in the plural, as opposed to only one, with different fundamental rules and practices ossified and coalesced in different organisations of different regional orders (Costa Buranelli 2019). More on this will be said in the next section. International and World Society The third prism that the ES adopts to study processes of global (and regional) constitutionalisation is that of the interrelation between international and world society. While the first generation of ES thinkers paid attention to the ontological tripartition of world politic (system, society, world society) but at the same time privileged analytically the international society dimension, the new turn of the ES has started inquiring more and more not simply into the interrelation between international and world society, but also into how world society can affect institutional dynamics at the level of international society, thus impacting on processes of constitutionalisation thereof. The focus on how non-state actors can have agency in international society, to the point of creating new primary institutions and/or dismantling existing ones, has been at the forefront of the work of, for example, Ian Clark, who specifically links ideas of legitimacy in international society to the inter-human component of it. This is an argument developed in a solidarist fashion, for it locates the source of the moral viability and acceptability of order between states within humanity. It also echoes Bull’s ‘solidarism of the heart’, for in an oft-neglected aspect of his thought he actually located the ultimate source of the legitimacy of international society in what he called the ‘world political system’, i.e. the interplay between states and peoples (Bull 1977). More recently, by distinguishing a normative world society whose primary institution is collective identity from a political world society whose primary institution is advocacy, Barry Buzan (2017) has theorised how solidarist institutions such as the market, human rights, or the environment were initially promoted, and now are supported and developed, thanks to the role that world society has been playing. Conversely, authors such as John Pella (2013) have pointed at how world society has contributed to a restructuring of international society in a decolonial sense through the movements for the abolition of slavery.

The English School and global constitutionalism  161 This third prism of the ES can therefore help in the study of global constitutionalism by emphasising how different forces located at different levels of analysis impact, shape, tailor and affect the institutional structure of the normative compact at a given time in history, highlighting how global constitutionalism and the process thereof are not simply a matter of states, but are a complex interplay of interests, aims, moral preferences and ethics. In this respect, for example, the focus on the interplay between international and world society has been crucial in identifying ‘constitutional moments’ in contemporary international relations that have elevated human beings as both bearers of rights and responsibilities in international society, such as the formation of the International Criminal Court (Ralph 2007), the institutionalisation of individual sanctions (Wilson and Yao 2019), and the creation of the UN Ombudsperson, tellingly defined as a ‘contact point between international and world society’ (Giumelli and Costa Buranelli 2020).

CURRENT DEBATES AND FUTURE RESEARCH AREAS This last section intends to discuss some of the current debates that pertain to an ES approach to Global Constitutionalism as well as indicate some future research areas that, in the mind of this author, may be promising avenues to enhance and entrench the synergies between ES and Global Constitutionalism. In other words, this section is asking what aporias, areas of contestation and debate is the ES illuminating that can be important for students of Global Constitutionalism to address and reflect on? I will elaborate on three. First, there is the issue of regionalisation and the polysemy of institutions (Costa Buranelli 2015). As the world seems to have entered a post-hegemonic era and current dynamics of embedded pluralism seem to be underway, it is spontaneous to at least question the meaning of ‘global’ in global constitutionalism. This is a debate that pertains to the pluralist wing of the ES (in the sense of how morally justifiable the defence of cultural and moral differences between regional groupings is) as much as for the solidarist one (where is solidarism going, and is solidarism necessarily liberal?) The issue here is that there is evidence that regional international societies are coalescing around their own constitutional compacts, developing new institutions and/or altering the fundamental meanings of existing ones thus undermining the globality of the covenant, á la Jackson (Buzan and Schouenborg 2018). Second, and related to the above, there is the growing demand for incorporating the theoretical, epistemological and moral arguments of the Global IR and decolonisation within established IR theory, and the ES is no exception (Costa Buranelli and Taeuber 2022). As noted in the previous section, much of the work of the ES in the realm of global constitutionalism has been very much derived from the European experience, and has been based on strong Eurocentric accounts of political theory and history (Bull and Watson 1984; Dunne and Reus-Smit 2017). The point here is to understand what the impact for global constitutionalism would be for those people who, in the past, where left outside the constitutionalised realm of international society because of different ‘standards of civilisation’ (Costa Buranelli 2020) and therefore not protected by the obligations of such compact, and to retrieve the connection between the globalisation of the constitutional structures of international society, rooted both in primary and secondary institutions as analysed above, and racism, colonialism, violent dispossession and oppression (Pasha 2017). This means an acknowledgement of the

162  Handbook on global constitutionalism not-so-voluntary ‘associationalism’ at the heart of the constitution of global international society, as well as a recognition that other traditions of constitutionalism have been silenced. Here, the ES in dialogue with Global IR may encourage a reflection on what is meant by ‘constitutionalism’, whether the Western, republican idea of a covenant rooted in explicit rights, values and non-compromisable principles, or whether it should be meant something more fundamental along the lines of ‘constituting’ in the sense of ‘informing’, ‘sustaining’, ‘regulating’, thus embracing the richness and diversity of non-Western experiences, both contemporary but also historically (Phillips and Reus-Smit 2020; Spruyt 2020). Once again, here the strength of the ES is that of appreciating, if not necessarily resolving, the tension that exists between uniformity and diversity, socialisation and resistance, domination and emancipation, globalisation and localisation – all fundamental tensions within the project of Global Constitutionalism. Recently, authors have started exploring the long-dated contribution of the Asian continent, if with all its internal diversity, to global constitutionalism (Bhandari 2013; Lang 2021), and more should be done in this respect. Third, and again at least in part related to the above, is the issue pertaining to the structure itself of international society and, therefore, the kind of covenant that would legitimise it. In a partial overlap with the issue of regionalisation of world order and the polysemy of its institutions, one can make the case that some states are pushing for a return to an order based on spheres of interests (when not influence) and more hierarchical relations in international politics, embracing a flexible understanding of sovereignty (arguably the bedrock of the current global covenant). This would present an interesting interplay between power politics and a further constitutionalisation of the institution of great power management, consolidating and de facto legitimising the inequality between them and other states and redrawing the rest of the institutional architecture of global politics by subsuming diplomacy under transactionalism and self-determination under an interpretation of sovereignty as birth-culture (Michelsen et al 2022). The recent events in Eurasia and, more specifically, in Ukraine are a sad yet timely reminder that the globality of constitutionalism is an institutional, as well as moral, aspiration and tension, as opposed to a fait accompli.

CONCLUSIONS This chapter had a dual goal. On the one hand, it presented the reader with how the ES has always been concerned with, and interested in, constitutional processes latu sensu in world politics. It did so by elaborating on the existing synergies between the ontological and epistemological components of the theory and the research programme of Global Constitutionalism as well as analysing the work of past and current scholars working with the theory. On the other hand, it identified similarities with the constitutional theory of Costantino Mortati, and advanced three distinctive ways in which the ES can shed light on global constitutionalism – the pluralism-solidarism distinction; the relationship between primary and secondary institutions; and the interplay between international and world society. After this, an overview of the existing challenges for global constitutionalism from an ES perspective was offered, alongside some ideas for future research trajectories. While not necessarily exhaustive, the hope is that this chapter has successfully made the case for the mutually nourishing relation between the ES and Global Constitutionalism and offer a set of convincing arguments as to why this mutually nourishing relation should be maintained, fostered and celebrated.

The English School and global constitutionalism  163

REFERENCES Ahrens, B., 2019. The European Union between solidarist change and pluralist re-enactment, in: T.B. Knudsen and C. Navari (eds), International Organization in the Anarchical Society. Palgrave Macmillan. Ahrens, B., and T. Diez, 2015. Solidarisation and its limits: the EU and the transformation of international society. Global Discourse, 5, 341–55. https://​doi​.org/​10​.1080/​23269995​.2015​.1053189. Bain, W., 2021. Pluralism and solidarism, in: C. Navari (ed.), International Society. Palgrave Macmillan. Bhandari, S., 2013. Global Constitutionalism and the Constitutionalization of International Relations: A Reflection of Asian Approaches to International Law (SSRN Scholarly Paper No. ID 2402084). Social Science Research Network, Rochester, NY. https://​doi​.org/​10​.2139/​ssrn​.2402084. Bull, H., 1977. The Anarchical Society: A Study of Order in World Politics. Macmillan. Bull, H., and A. Watson, 1984. The Expansion of International Society. Clarendon Press. Buzan, B., 2004. From International to World Society?: English School Theory and the Social Structure of Globalisation. Cambridge University Press. Buzan, B., 2017. Revisiting world society. Int Polit, 1–16. https://​doi​.org/​10​.1057/​s41311​-017​-0065​-5. Buzan, B., and L. Schouenborg, 2018. Global International Society: A New Framework for Analysis. Cambridge University Press. Clark, I., 2007. Legitimacy in International Society. Oxford University Press. https://​doi​.org/​10​.1093/​ acprof:​oso/​9780199219193​.001​.0001. Cochran, M., 2009. Charting the ethics of the English School: What ‘Good’ is there in a middle-ground ethics? International Studies Quarterly, 53, 203–25. https://​doi​.org/​10​.1111/​j​.1468​-2478​.2008​.01529​ .x. Costa Buranelli, F., 2015. ‘Do you know what I mean?’ ‘Not exactly’: English School, global international society and the polysemy of institutions. Global Discourse, 5, 499–514. https://​doi​.org/​10​.1080/​ 23269995​.2015​.1053195. Costa Buranelli, F., 2019. Global international society, regional international societies and regional international organizations: A dataset of primary institutions, in: T. Knudsen and C Navari (eds), International Organisations in the Anarchical Society. Palgrave Macmillan. Costa Buranelli, F., 2020. Standard of civilization, nomadism and territoriality in nineteenth-century international society, in: J. Levin (ed.), Nomad-State Relationships in International Relations: Before and after Borders. Springer International Publishing, pp.  77–99. https://​doi​.org/​10​.1007/​978​-3​-030​ -28053​-6​_5. Costa Buranelli, F., and S.F. Taeuber, 2022. The English School and Global IR – A research agenda. All Azimuth, 11, 87–105. Cox, R.W., 1981. Social forces, states and world orders: Beyond international relations theory. Millennium, 10, 126–55. https://​doi​.org/​10​.1177/​03058298810100020501. Dunne, T., and C. Reus-Smit (eds), 2017. The Globalization of International Society. Oxford University Press. Dunoff, J.L., A. Wiener, M. Kumm, A.F. Lang, and J. Tully, 2015. Hard times: Progress narratives, historical contingency and the fate of global constitutionalism. Global Constitutionalism, 4, 1–17. https://​ doi​.org/​10​.1017/​S204538171400015X. Friedner Parrat, C., 2017. On the evolution of primary institutions of international society. Int Stud Q, 61, 623–30. https://​doi​.org/​10​.1093/​isq/​sqx039. Giumelli, F., and F. Costa Buranelli, 2020. When states and individuals meet: The UN Ombudsperson as a ‘contact point’ between international and world society. International Relations, 34, 46–66. https://​ doi​.org/​10​.1177/​0047117819856402. Hurrell, A., 2007. On Global Order: Power, Values, and the Constitution of International Society. Oxford University Press. Hurrell, A., 2021. Hedley Bull and the idea of order in international society, in: C. Navari (ed.), International Society. Palgrave Macmillan. Jackson, R.H., 2000. The Global Covenant: Human Conduct in a World of States. Oxford University Press. Keens-Soper, M., 2016. The Practice of a State System, in: M. Donelan (ed.), The Reason of States. Routledge, pp. 25–44.

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The English School and global constitutionalism  165 Spandler, K., 2015. The political international society: Change in primary and secondary institutions. Review of International Studies, 41, 601–22. https://doi.org/10.1017/S026021051400045X. Spruyt, H., 2020. The World Imagined: Collective Beliefs and Political Order in the Sinocentric, Islamic and Southeast Asian International Societies, LSE International Studies. Cambridge University Press. https://doi.org/10.1017/9781108867948. Swenson, G., 2018. Legal pluralism in theory and practice. International Studies Review, 20, 438–62. https://doi.org/10.1093/isr/vix060. Watson, A., 1992. The Evolution of International Society: A Comparative Historical Analysis. Routledge. Weinert, M.S., 2011. Reframing the Pluralist – Solidarist Debate. Millennium, 40, 21–41. https://doi. org/10.1177/0305829811406036. Wheeler, N.J., 2000. Saving Strangers: Humanitarian Intervention in International Society. Oxford University Press. Wight, M., 1966. Western values in international relations, in: H. Butterfield and M. Wight (eds), Diplomatic Investigations: Essays on the Theory of International Politics. London. Williams, J., 2015. Ethics, Diversity, and World Politics: Saving Pluralism from Itself? Oxford University Press. Wilson, P., and J. Yao, 2019. International sanctions as a primary institution of international society, in: T. Brems Knudsen and C. Navari (eds), International Organization in the Anarchical Society: The Institutional Structure of World Order, Palgrave Studies in International Relations. Springer International Publishing, pp. 127–48. https://doi.org/10.1007/978-3-319-71622-0_6.

13. Postcolonial global constitutionalism Sigrid Boysen

INTRODUCTION If constitutionalism was what it claims to be, colonialism and constitutionalism would be diametrically opposed concepts. While colonialism and imperialism stand for domination, exploitation and coercion, constitutionalism is preoccupied with recognising the peoples’ right to self-determination and limiting the power of domestic governments by a body of fundamental laws. This is also and especially true for global constitutionalism: As an inter- and intradisciplinary field including, inter alia, international law, comparative constitutional law, international relations, political science and political theory, it sets out to usher legitimacy and accountability within international law and its institutions and to develop a more coherent and legitimate global legal order (Wiener and Oeter 2017). For the prevalent legal strand of the endeavour this comes with a lot of mapping and describing. For years, if not decades, the relevant literature thrived on ever-new discoveries of constitutional norms and processes. They were most prominently found in the World Trade Organisation (WTO) and its dispute settlement system (Petersmann 2000; Cass 2005) and from there went on to conquer other areas of law, including, inter alia, environmental law, the law of cultural heritage, and investment protection law (Schill 2015). Aiming to rebuild globally what seemed to erode on the national level, the contributions all share an underlying tone that is in praise of a developing and with ever more substantive international legal order, the so-called ‘global constitutionalist trinity’ of democracy, rule of law, with human rights featuring as the centrepiece of the endeavour (Kumm et al 2014, p. 3; Wiener et al 2012). This does not imply that the critique of law has no place in global constitutional law. It is to critical norm theory (Wiener 2014) that we owe the insight that the constitutionalisation of international law is not simply a straight line of development, but – if anything – a bumpy road full of political conflicts indicated by frequent contestations of norms. However, the suggestion that rather than equating progressive international juridification with constitutionalisation, we should look for arenas of conflict and elements of contestation to mark the emergence of global constitutional norms, was not received well by international legal scholars. This is hardly surprising since some of the discipline’s most prominent proponents have put a life’s work into the idea of the ‘international community’ as a legal space that limits political power (Tomuschat 1999; Simma and Paulus 1998). The legalisation of everything adds up to a kind of constitutional surplus, a desirable creamy layer of constitutional principles that are supposed to create an international legal order that is transparent, accountable, democratic. However, this line of thinking makes it difficult if not impossible to address law’s role in creating and upholding injustice, inequality and conflict (Kennedy 2020). This also holds true for the very premise of many variants of global legal constitutionalism. As they depict law beyond the state as somehow weak and insufficient, they obscure international law’s role in the reproduction of injustice and inequality, even as it enables it. For what seemed like a very long time, global legal constitutionalism thrived in a legal framework that – despite ever-rising 166

Postcolonial global constitutionalism  167 levels of global inequality – operated on a narrative of progress. The underlying assumption of the constitutionalisation of international law was inextricably linked to well-chosen periods or constitutional moments that initiate and guide it: first and foremost, the fall of the Soviet Union and the victory of liberal constitutionalism, and, second, the end of World War II with the creation of the United Nations. The triumphalism of this historical anchoring should have cast doubt on the jurisprudential project built upon it from the beginning (Kumar 2017). Quite to the contrary, it rather seemed to fuel the constitutionalisation debate that flourished in the aftermath of the presumed end of history. The last decade has been sobering in every regard: a global environmental crisis, a never-ending war on terror, an unforeseen rise of autocratic regimes, the marketisation of social and global justice, Russia’s war on Ukraine, just to name a few, put the idea of an ever-expanding constitutionalisation of international law to the test. The amount of optimism (or naïveté) it would take to envisage a ‘constitutional’ solution to all these problems seemingly presents a challenge even to the most enthusiastic proponents of the project (compare also Lang and Wiener, Chapter 1 in this Handbook). It was only when the constitutionalism discourse entered this dire phase that its international law branch opened up to the idea that there might be a problem with the concept of an international legal sphere that is shielded against political conflict. But it still remains difficult to identify arenas for political conflict, to locate sites where decisions can be contested, where people can share possible solutions and responsibility for the handling of the immense challenges. Global constitutionalism has not created such a space and its home base – Europe and North America – is no longer a potent hegemon. However, focusing on law’s role in political conflict and the apparent difficulties to engage in it prompts the assumption that the decisive question might not be what global constitutionalism is about, but what it is precisely not about. The most obvious candidates for such gaps certainly are the Global South and the colonial experience. The focus of global constitutionalism scholars on the post-World War II order and the collapse of the Soviet Union has overshadowed another historical event: the formal end of European imperialism. There are many reasons why decolonisation was not, or at least not sufficiently reflected in the context of global constitutionalism. For the geopolitical system, decolonisation was both a moment of rupture and continuity (Bonilla Maldonado and Riegner 2020; Bonilla Maldonado 2018). The ‘geopolitics of knowledge’ (Mignolo 2002) continued to reflect epistemic hierarchies and marginalised the experience of the Global South (Schwöbel-Patel 2020). The widely-held belief that constitutionalism is inherently neutral towards economic order helped to stabilise economic inequalities. After the fall of the Soviet Union and the assumed end of the Cold War, there seemed to be a tacit consensus about the basic economic order of all constitutional systems of the world and, hence, of global constitutionalism. From a Global South perspective, it is precisely this chosen historical frame of reference that marks constitutionalism as inherently colonial, that is to say: property-centred. This is ironically true most of all for US constitutional law, the former British colonies, and, without a written constitution, for common law constitutionalism, but also more generally for constitutions following the French or German tradition. These analogies reveal global law and global constitutionalism in particular as part of a global architecture of domination. Arguing from a neo-Marxist perspective, some authors even point out that the very concept of property as a basis of constitutional protection of rights is inherently colonial (Bhandar 2018; Wood 2012; Walcott 2021).

168  Handbook on global constitutionalism In an attempt to capture the postcolonial constellation of global constitutionalism, this chapter proceeds in four steps. First, it investigates the connection between constitutionalism and colonialism and argues that they are more closely related than has usually been accounted for. Second, it reconsiders global constitutionalism as an architecture of domination that like its domestic variant tends to pose as an introvert endeavour, to emphasise its principled, power restricting impetus while concealing its dominant and often violent external dimension. An integral part of this architecture of domination are the politics of universality that promote the dominant set of particular values to the universal. Building on this, the chapter thirdly explores the most salient gaps in the current global constitutionalism framework starting with the Global South and the Southern turn in international and comparative constitutional law. Going beyond a merely comparative law approach, the chapter argues in a fourth step that global constitutionalism is not only marginalising the colonial experience and the Global South, but in a more fundamental sense has detached itself from the defining parameter of the Global South’s relationship with the global economic order. This political-economy divide aligns with another classical distinction, i.e., that between public and private law. Problematic from the very outset, these boundaries seemed to guarantee ideological neutrality in an international order that was supported by two empires with opposing economic systems. Now they find themselves in a process of disintegration. It is precisely the postcolonial constellation that opened the floor for a new transnational law. In this new transnational constellation, corporations privatise parts of the legal relations between states in the Global North and South through investments. International multilateral agreements rest on (and are often undermined by) a substructure of transnational private contracts. Against this background, the concluding analysis points at a troubling contradiction that lies at the heart of global constitutionalism: while the study of global constitutional law is neither about the economy, nor about distributive justice or power relations in general, there is only one kind of law that is both truly global and constitutional. It consists of the basic legal structures of global markets and is based on yet another trinity: property rights, free trade, and investment protection.

CONSTITUTIONAL COLONIALISM Both domestic and global variants of constitutionalism tend to ignore the inherent connection between constitutionalism and colonialism. The dissemination of written constitutions is traditionally analysed in the context of specific legal orders. Their rapid spread around the globe in the nineteenth century is usually attributed to the impact of famous revolutions: the American revolution after 1776, and, shortly afterwards, the French and – notoriously neglected – Haitian revolutions (Bhambra 2016) as well as the revolts that erupted in the 1810s in the Spanish and Portuguese colonies in South America. Focusing on particular legal systems and revolutions as ‘constitutional moments’, the predominant narrative overshadows the fact that constitutionalism and colonialism have gone hand-in-hand in the process of increasing the power of European states. Ever since the nineteenth century, they have come as a package deal: constitutionalism governing the internal, colonialism the external affairs of the sovereign state. If it therefore still seems pressing to decolonise global constitutionalism, both concepts – colonialism as well as constitutionalism – need some clarification. Constitutionalism comes in many forms and variations. While some authors seek to legitimise international public authority through its institutionalisation, others take a normative

Postcolonial global constitutionalism  169 approach and identify specific norms that serve as building blocks for a global constitutional order. Many of these normative approaches build on an affirmative account of the international legal order, while critical norm theory points to the significance of sites and instances of political struggle and contestation. Some accounts heavily rely on analogies between global and domestic or regional forms of constitutionalism while others disassociate constitutionalism from the nation-state and envisage a global constitutionalism of civil society (Schwöbel 2011). The different approaches share roots in German legal scholarship and a concept of constitutionalisation that oscillates between a vocabulary of institutional hierarchisation and fundamental values. It can be read as an attempt to establish a hierarchically structured legal framework based on the rule of law in which conflicting conceptions of the common good could be reconciled on the basis of simple or qualified majorities. All approaches employ a concept of hierarchy and conceive of constitutional norms as creating a political-legitimacy surplus that goes beyond their regulatory scope. This in turn leads to politics of universality that promote the dominant set of particular values as universal. Thirdly and most importantly, what all variants of constitutionalism have in common is the concept of a public-private divide as it historically has been established by the early modern state. It was endorsed by eighteenth and nineteenth-century constitutionalism and is now reproduced by global constitutionalism. Like its domestic counterpart, it rests on a distinction between public authority and a private law that is based on a fiction of private autonomy and the equality of parties. In international law, the public-private divide translates into a separation of the political and the economic sphere. This separation constitutes a central characteristic of the international legal order of the United Nations: the universalisation of the principle of sovereign equality was only possible through the institutional and normative disconnection of the political from the economy (Boysen 2021). As for colonialism, postcolonial theory has produced a vast body of literature that traces the history of its critique back to Nietzsche’s paradigmatic appraisal of the myth of pure origins and the emancipatory myth of progress and teleology (Gandhi 2019). Legal scholars tend to employ a rather narrow concept of colonialism that is closely linked to European imperialism in the late nineteenth and early twentieth century understood as an open policy of acquiring colonial territories for economic, strategic and political aims. Many authors have explored in detail how international law and in particular a specific notion of sovereignty not only tolerated, but helped to legitimise imperialism and the colonial expansion and how colonial legacies are still deeply inscribed in international legal forms today (Rajagopal 2003; Anghie 2005; Pahuja 2011). This distinctly legal critique of colonial titles of possession and exploitation is opposed by approaches which describe colonialism and imperialism in more general terms as a practice of domination. Edward Said uses imperialism in this sense to describe ‘the practice, theory, and the attitudes of a dominating metropolitan centre ruling a distant territory’ (Said 1993, p. 8). In this broad perspective, postcolonialism embodies a general critique of domination over those the respective practices render subordinate. In this vein, feminist approaches have criticised analogies that have been drawn between the position of states in the Global South and that of women (Charlesworth et al 1991). They have also pointed to the ‘double colonisation’ of women who were subject both to general discrimination as colonised persons and to specific gender-based discrimination (Spivak 1985; Mohanty 1984). In the tradition of theories that focus on liberalism and economic liberalism in particular, this chapter relies on a broader concept of postcolonialism and uses it to discuss the shortcomings

170  Handbook on global constitutionalism of a conceptual framework that is European-centred and in some parts even can be characterised as a predominantly German discussion. In this vein, it seems important to use an approach that highlights the connection between colonialism and capitalism. Ever since Adam Smith’s depiction of the role of commodities in distinguishing the ‘civilised’ from the ‘uncivilised’, his underlying ideology of ‘economic liberalism’ can be seen as deeply entrenched with the ideology of Empire. In Smith’s conception, trade and the possession of an abundance of ‘objects of comfort’ constitute the mark of distinction between ‘civilised’ and ‘uncivilised’ states (Smith 1776). This as well as the fact that European post-Renaissance colonial expansion coincided with the development of a modern capitalist system of economic exchange connects the free operation of the market to the idea of the ‘civilizing mission’ of Empire (Ashcroft et al 2013). Returning to the relationship between constitutionalism and colonialism, the traditional account depicts the former as a purely nationalist, introverted endeavour: Revolutions overthrow feudalistic orders and pave the way for republicanism and democratic nation states. In this picture, colonialism features as an aberration, a dark spot on a clean slate. It is a narrative that ignores the synchronicity in the development of constitutionalism and colonialism and once more tells a story of progress that leaves out many important details. First of all, in the early twentieth century when written constitutions had already spread across the world, most states were still monarchies and very few were democracies. Second, and even more importantly, the standard account overlooks the elephant in the room: The most powerful actors at that time were not nation states but empires. And while it is certainly true that there are important differences between revolutions and wars – the former traditionally being a class project – there are similarities that tend to be overlooked. As Linda Colley has shown, both wars and revolutions primarily constitute expressions of mass violence and their distinction is unstable at best (Colley 2021). Hence, all of the revolutions mentioned above, the American and French revolutions as well as the subsequent revolutions in Haiti and South America, must be seen in a context of transcontinental warfare that preceded them. For some countries, these wars brought about new regimes which experimented with written constitutions as a means to reorder government. But even in the prevailing states wars influenced the proliferation and design of written constitutions. Constitutional rights like admission to the franchise were exchanged for military service and higher taxes (Colley 2021). While this part of the story only accounts for the impact of war on nation-building, the other part is about empire. In 1914, at a point where written constitutions were becoming the norm, eleven of the twelve most populous political jurisdictions were empires and they all experimented with written constitutions. Constitutions became an integral part of colonial rule: legitimising it in the first place and establishing rights and privileges for their citizens at the cost of disenfranchising local populations in the colonial territories. At the same time, it was European colonial expansion itself that prompted non-European states that had not yet been colonised to develop written constitutions in an attempt to strengthen their political systems against the looming threat of an unfriendly takeover (Colley 2021). Finally, it can hardly be ignored that – as Partha Chatterjee has pointed out – ‘most of the world’, i.e. ‘three-fourths of contemporary humanity’, were ‘not direct participants in the history of the evolution of the institutions of modern capitalist democracy’ (Chatterjee 2006, p. 3). As a result, the concept of ‘civil society’ remains ‘restricted to a small section of culturally equipped citizens’ (Chatterjee 2006, p. 41) and it may well be argued that it is only this select group that constitutes ‘the people’ in the constitutional imagination (Loughlin 2022, p. 173).

Postcolonial global constitutionalism  171 These links between constitutionalism and colonialism have only scarcely been reflected in domestic constitutional law. In international law with its notorious politics-economy divide (Pahuja 2011), for a very long time, it did not seem to matter at all. And this is certainly not a coincidence. The institutional separation of sovereign equality and economic inequality in the international legal order established after World War II has always carried the meaning of ideological neutrality vis-à-vis domestic economic policy. International law between sovereign, politically equal states was supposed to be secular, rational law. The distinction permeates different areas of international law and already manifests in the US Military Tribunals at Nuremberg (NMT). Both the US and the USSR regarded World War II as an act of economic imperialism in which industrialists had played a key role at every stage (Baars 2014). In the Flick case, Telford Taylor, Counsel for the Prosecution at the NMT, openly addressed the fact that the war had been orchestrated by an ‘unholy trinity’ of corporatism, Nazism and militarism.1 However, the NMT largely failed to hold German industrialist accountable for their crimes against humanity (De Jong 2022), which in turn can be read as a precedent for current international criminal law’s tendency to ignore economic causes of conflict and has resulted in its characterisation as a form of capitalist imperialism (Baars 2014). In this vein, the politics-economy divide becomes especially virulent for international law after decolonisation. Here, the claim to the universality of international law universalises preferences of the North, like free trade, economic growth and the interest in protection of natural resources. While international law thus becomes an instrument for achieving these interests, we find ourselves not only in a postcolonial, but increasingly in a transnational constellation, characterised by a dissolution of boundaries, both territorially and in terms of the erosion of classical distinctions: between public and private, between law and non-law. Transnational corporations privatise part of the legal relations between states in the Global North and South through investments and international multilateral agreements rest on (and are often undermined by) a substructure of transnational private contracts.

ARCHITECTURE OF DOMINATION The Ius Publicum Europaeum from the seventeenth to the nineteenth centuries excluded the so-called ‘uncivilised’ nations from the community of states under international law and exploited their workforce and natural resources according to self-issued legal titles. Against this background, the term ‘architecture of domination’ not only applies to colonial rule itself, but also to the lasting effects of what Antony Anghie has called a ‘dynamic of difference’, i.e., the process of establishing a gap between colonisers and the colonised (‘civilised’/‘uncivilised’) and subsequently legitimising techniques to bridge this alleged gap (Anghie 2005, p. 4; Young 1991). These techniques include legal arrangements to naturalise the enjoyment of entitlements, rights and privileges for one (racially defined) group, at the cost of disenfranchising another. While, at its peak, the legal strand of global constitutionalism went so far as to explicitly reference the United Nations’ Charter as a form of world constitution (Fassbender 1998, 2009), it United States v Friedrich Flick et al, US Military Tribunal Nuremberg, Judgment of 20 August 1947, in: Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946–April 1949, Vol. VI, Prosecution Opening Statement, 32. 1

172  Handbook on global constitutionalism now has become utterly clear that the establishment of the UN in 1945 was all but a fresh start. While utopian readings of the founding period depict a visionary and prudent internationalism, a new world order risen out of the common goal to fight Nazism, there are also more sobering accounts that reveal the ambiguities of the motives in play. These ambiguities are of crucial importance if we seek to read today’s failures and challenges against the background of the establishment of the UN. The institutionalist branch of global constitutionalism explicitly or implicitly often seems to feed off the narrative that ‘the United Nations rose – like Aphrodite – from World War II, pure and uncontaminated by any significant association with that pre-war failure, the League of Nations’ (Mazower 2009, p. 14). And while one can certainly read the UN Charter as establishing a new world order after the victory over Nazism, there is another perspective that highlights personal and intellectual continuities that connect the UN to the League of Nations and British Empire. As Mark Mazower points out in his rather critical account of the formation of the UN, one of the most influential figures at the conference in San Francisco was South African prime minister Jan Smuts. As one of the oldest delegates, he had already been involved in the establishment of the League of Nations 20 years earlier. As prime minister, Smuts oversaw the beginnings of the apartheid regime. As a delegate at the conferences establishing the League of Nations and the UN, he can first and foremost be characterised as a ‘figure of empire’ (Mazower 2009, p. 30). Not only did he serve as a member of the Imperial War Cabinet during World War I, but he was also highly regarded as the creator of the Royal Air Force and chief ideologue for the new British Commonwealth. In the formation period of the UN, Smuts played a significant role in implementing his ideology of ‘imperial internationalism’ and basically did everything to ‘prop up an empire in decline and offer a new way to project its self-defined sense of moral purpose globally’ (Mazower 2009, p. 192). Thus, while it is perfectly legitimate to highlight the ambitious moral language of the UN Charter, it is hardly understandable how the colonial roots of the UN escaped the mainstream of the debate. Against this background, it is not surprising that decolonisation could not keep up with the high expectations placed on it. Even under the new framework of the United Nations it did not take long before disillusionment and the feeling of being trapped once again in – now informal – colonial structures spread among the newly independent former states of the Global South. After a first phase when a global movement engaged in a struggle for the redistribution of land to empower farmers in the Global South, it was a US-led shift in development policies that eventually resulted in the failure to reconstruct postcolonial economies from scratch (Guldi 2022). The colonial opposition of ‘civilised’/‘uncivilised’ was replaced by the distinction between ‘developed’ and ‘underdeveloped’ states that established a paradigm of economic growth and justified far-reaching interventions. The fixation on economic growth remains dominant until today and manifests itself in the remarkable continuity of the industrialised countries’ access to the natural resources of the Global South. It was perpetuated in the process of decolonisation by a transnational constellation of new legal titles in the form of concession contracts that were protected through international investment law (Boysen 2021). It was in 1992, around the same time when Thomas Franck published his seminal article ‘The emerging right to democratic governance’ (Franck 1992), that Secretary-General Boutros Boutros-Ghali saluted the end of the Cold War as a ‘new chapter in the history of the United Nations’ (Boutros-Ghali 1992, p. 89). The reference to a new constitutional moment was declaratory rather than constitutive. For a short period of time, everything seemed possible. The UN, entrusted with renewed meaning, held a monopoly on legitimately building and

Postcolonial global constitutionalism  173 securing peace, defending human rights, and representing the interest of all mankind – if necessary – by intervening in its member states (Boysen 2019). But the euphoria was short-lived. The striving hopes and expectations went up in flames in the Balkans and in Africa, the genocide in Rwanda marking a point zero in the UN’s credibility as global peacekeeper. While the academic debate around the UN quickly resumed discussions about institutional reforms, global constitutionalism reached its first pinnacle in the aftermath of the establishment of the WTO (Petersmann 1998). The UN stayed at the centre of global constitutionalism. There may still be many good reasons to engage with the UN from a constitutionalist perspective. At the same time, the UN serve as a case in point for the failure of global constitutionalism to include the ambiguities of its founding narratives and institutions. Just as it is counterproductive to ignore the imperial internationalism that informed the creation of the United Nations and is deeply inscribed in its institutional architecture, it is likewise counterproductive to take the ‘universal’ for granted.

POLITICS OF UNIVERSALITY For international law scholars, international law’s promise resides in its universality. Even scholars associated with Third World Approaches to International Law (TWAIL) seem to embrace the concept and engage in the quest for a new, decolonised variant of ‘the universal’ (Rajagopal 2006). Though, it is precisely TWAIL’s critique that has shown that ‘ostensibly genuine universals invariably end up elevating a particular meaning to the universal’ (Eslava and Pahuja 2012a, p. 121). The underlying mechanism has already been described above: Thriving on a ‘dynamic of difference’, the dominant set of particular values is able to cast itself as universal (Anghie 2005, p. 4). The downside of the ‘universal’ is the ‘particular’, the important point being that – in a historical perspective – all those who have not fit within the dominant idea of the universal have been marginalised or even pathologised as ‘uncivilised’, ‘underdeveloped’, ‘poor’, ‘subaltern’. Conversely, the universal of international law has been shaped by people, places or motives that are commonly described or describe themselves as ‘Civilised, Advanced, Developed or Rich’ (Eslava and Pahuja 2012b, p. 211). This in turn leads to a trend to deploy the Western particular, i.e., notions and concepts of mostly European constitutional law or of US- or German administrative law, as universal norms (Xavier 2016). It thus seems unclear how the universal should escape the logic of the ‘dominant particular’. The technicalities of this universalisation of the dominant particular have been described in the literature. One topic that has repeatedly been raised since the beginning of the decolonisation process is the question of ‘unequal treaties’, i.e., international treaties that caught the newly independent former colonies in a relationship of economic dependence. The unequal contractual relations were cemented by so-called stabilisation clauses that precluded substantive changes (Anghie 2005; Spero and Hart 2003). According to the law of state succession, obligations were treated differently if not the state itself, but the colonial rulers had entered into the respective treaties. In these cases, the protection of acquired rights was subject to the sovereign disposal of the newly emerging states, but at the same time to extensive compensation obligations (Craven 2007). The same modus operandi can be found in categories like ius cogens (Özsu 2017; Charlesworth and Chinkin 2000), general principles of international law or international customary law. The latter is by its very nature supposed to describe a general state practice based on a corresponding opinio iuris. This concept seems much more plausible

174  Handbook on global constitutionalism (and practicable) in the setting of a rather homogeneous group of 51 states at the time of the foundation of the United Nations than in view of 194 states that are highly heterogeneous in their socio-economic conditions. If customary law thus initially reflects the practice, traditions and values of the ‘advanced’ states, the perspective of the South is marginalised (Chimni 2018; Kelly 2000). The less formal, fluid character of customary law makes it susceptible to manipulation in this constellation (Cassese 1986, p. 66 et seq.). It is also hardly a coincidence that the rise of global constitutionalism was accompanied by a ‘call for coherence in international law’ (Marceau 1999). Coherence has been at the centre of the predominant discourses responding to the evident crisis of international law that has followed the supposed end of history. It sometimes seems to escape the global constitutionalism literature that its primary constitutional moment in the early 1990s coincided with, or was at least followed by, a crisis of multilateralism that lasts until today. Ever since the establishment of the WTO in 1994, multilateral agreements with a universal claim have experienced significant headwinds. The same is true for customary international law. Since then, general international law has been in search of interlocking legal principles. A first wave of this crisis discourse, which also figured prominently in the International Law Commission, was the discussion on the fragmentation of international law which became known above all through the 2006 report of the Study Group led by Martti Koskenniemi. The report put forward the idea to reconstruct core international law as a conflict of laws with mitigating principles between fragmented sub-regimes (ILC 2006). Subsequently, the search for coherence has shifted to the sources of international law. Here, the International Law Commission explored both international treaty (ILC 2013–2018) and customary law (ILC 2014–2018) and finally turned to the general principles of international law which have been on its agenda since 2017. The overall orientation towards the production of coherence is especially evident from the two reports of the Special Rapporteur (ILC 2019 and 2020). The reports address both principles that international law derives from the commonalities of state legal systems as well as general principles found and operationalised at the international level itself. While basically every detail is contested, the quest for overarching principles touches upon core elements of the constitutionalism project. This movement toward coherence and constitutional convergence comes at a price. The respective trends are countered by expressions of constitutional resistance, contestation or even defiance. Thus, it is precisely the pursuit of constitutional convergence and coherence that prompts manifold reactions of ‘opting out’ (Hirschl 2018). In this perspective, putting too much emphasis on ‘the universal’ appears as a central shortcoming of global constitutionalism (as well as of global administrative law). Rather than thinking about both international law and global constitutionalism as a set of ‘concrete practices that express themselves in the material world’ (Eslava and Pahuja 2012b, p. 214), contributions to global constitutionalism often ignore and obscure the true nature of international law and its institutions. But legal arrangements and constitutional arrangements in particular often have a distributive effect. They distribute by influencing the bargaining power of individuals or groups, they exclude others from political authority or economic gain by putting down criteria for which allocations will be enforced (Kennedy 2020). Last not least, another flipside of this preoccupation with the universal is its inherent connection to juristocracy (Hirschl 2007). The institutional actors behind these norms are usually courts which can hardly claim to act on behalf of a constituent power (Rubinelli 2020). On the international level, inquiries into the foundations of courts’ legitimacy have led to calls for or a democratic re-conceptualisation of the international judici-

Postcolonial global constitutionalism  175 ary (Bogdandy and Venzke, 2014). Many of these arguments also apply to domestic courts as they, too, are increasingly involved in issues of global justice and human rights.

THE SOUTHERN TURN While these problems of the international legal order have not gone unnoticed, the Global South still remains one of the most salient gaps in the global constitutionalism framework. It was as early as 1958 that Jawaharlal Nehru, as India’s acting first prime minister, noted that the crucial gap in international relations was not between communist and non-communist, but between the rich industrialised countries of the North and the economically barely developed countries of the South (Bedjaoui 1979). Since then, the Global North and Global South cannot be understood as exclusively territorial references, but as divided along material inequalities. As the example of Nehru already illustrates, the first significance of the category of the Global South is non-alignment, i.e., the experience of being only passively affected by the competition of the imperial great powers for global supremacy, but not belonging to the inner circle of its profiteers. Authors like Anibal Quijano, Boaventura de Sousa Santos or Raewyn Connell also emphasise this postcolonial identity-forming aspect of the Global South when they use the term ‘coloniality of power’ to emphasise the influence of colonialism on contemporary politics and culture (Quijano 2000, p. 533; Quijano 2007) or the specific intellectual traditions of the South (de Sousa Santos 2006 and 2007; Connell 2007). The intellectual history of the North-South distinction goes back to the writings of the Italian Marxist Antonio Gramsci, whose essay ‘Questione meridionale’ developed the thesis that the South of Italy was in fact colonised by capitalists of the Italian North, thus preventing an alliance between the farmers of the South and the workers of the North (Gramsci 2015[1919]). While later discussions of the North-South divide mostly referred only to the differences in economic development, development economics in the 1950s and 1960s returned to its connection with colonialism. The Argentinean economist Raúl Prebisch popularised the distinction between the centre and the periphery of the world economy, thus bringing the terms ‘North’ and ‘South’ into the terminology of international politics. Centre and periphery now formed alternative heuristic categories to the previously prevailing distinction between modern developed and traditional backward societies. A large number of states – including in particular the former colonies – began to formulate common interests of the Global South as opposed to the interests of the northern industrialised countries. They consciously framed their demands as a counter position to the ideological boundaries of the Cold War. In the 1990s, hardly surprisingly in parallel with the dismantling of the supposedly obsolete East-West divide, the concept of the Global South spread in social sciences and the humanities and was usually deliberately opposed to the concept of globalisation by denying common modernisation theory assumptions of an increasing homogenisation of cultures and societies. While postcolonial theorists used the term to highlight the continuing effects and legacies of imperialism and on the geopolitics of knowledge, international relations and political economy usually employ the term to point to huge inequalities in the global economy (Chimni and Mallavarapu 2012). Thus, the Global South is not a place, but rather a perspective that questions the logic of what Reinhart Koselleck has called asymmetric counter concepts (Koselleck 1989). It is ‘a political concept that gains its critical potential from its geographical imprecision’ (Dann et

176  Handbook on global constitutionalism al 2020, p. 7). The Global South therefore not only describes a common historical experience of colonial rule, a neo-liberal international economic order and the associated structural political and economic dominance of the North in the United Nations system (Dados and Connell 2012, p. 13). It also focuses on past and future resistance against these practices. International law has been involved at least in some of these debates. Its role in the Global South has been discussed by authors with different backgrounds (Comaroff and Comaroff 2006). It has been thoroughly reflected by TWAIL scholars (Chimni 2017), who do not share one single method, but rather a commonality of concerns and political orientation (Chimni 2006). They strategically engage with international law to highlight the ways in which international law conceals its colonial roots and marginalises the Global South in contemporary dualities as ‘Developed/ Developing, Centre/Periphery, Advanced/Emerging, or Rich/Poor’ (Eslava and Pahuja 2012b, p. 196). However, the TWAIL literature does not specifically engage with global constitutionalism, nor has a TWAIL equivalent emerged in comparative constitutional law. The Global South gap has neither gone unnoticed nor is it a recent discovery. When, in the 1990s that brought about new constitutions in the former Soviet Union and the Global South, scholars from the Global North first observed the rise of ‘world constitutionalism’ (Ackerman 1997), their Southern counterparts argued for a re-conceptualisation of constitutionalism from a Global South perspective (Baxi 2000). However, it took more than a decade until the Global South was specifically addressed from a constitutional perspective (Bonilla Maldonado 2013). In recent years, it has frequently been pointed out more generally that global constitutionalism is a regionally rooted project (Xavier 2016) that relies on constitutional concepts of an exclusive club of Western democracies in Europe and North America as well as European institutions like the European Union and the Council of Europe (Kumm et al 2017). Attempts are being made to close this gap, since it is hardly justifiable. Recent works in comparative constitutional law have set out to enlarge the world of global constitutionalism. The contributions identify distinct characteristics of Southern constitutionalism and put forward the argument that the Global South also denotes a specific epistemic, methodological, and institutional sensibility, meaning that including the Global South has implications for comparative constitutional scholarship as a whole. As for the characteristics, they observe common themes that mark Southern constitutionalism (1) as a distinct response to socio-economic transformation; (2) as a site of struggle about political organisation; and (3) as denial of and access to justice (Dann et al 2020). These are highly relevant contributions and if we were merely dealing with a problem of comparative constitutional law, this attempt to deepen and broaden the methods of comparative constitutional law would probably do the trick. But global constitutionalism is an odd creature that is not just powered by comparative constitutional law. It has moved to the very centre of general international law and international institutional law. From a comparative perspective, it seems both evident and urgent to include constitutional concepts from ‘most of the world’ (Chatterjee 2006). And there are other dimensions to the striking lacuna in the middle of the global constitutionalism project that go beyond the Global South and the subaltern perspective it represents. Global constitutionalism is not only marginalising the Global South, but in a more fundamental sense has detached itself from the defining parameter of the Global South’s relationship with the Global North.

Postcolonial global constitutionalism  177

GLOBAL CONSTITUTIONALISM’S POLITICAL ECONOMY Building on the contemporary form of liberal constitutionalism, global constitutionalism has banned the driving force of globalisation itself from its trajectory: the economy and with it the existing wealth and power distributions between different peoples and countries. Originating in large parts from the country of the Wirtschaftswunder, this might seem ironic, but in the context of the German experience of rehabilitation through trade after World War II, it is certainly no more a coincidence than the fact that it was Germany that signed the very first investment treaty with Pakistan in 1959.2 As the German example shows, subscribing to a vision of global constitutionalism that leaves out the economy in many ways suits the needs of a country that relies on natural resources from the Global South and export of industrial goods. The resulting lacuna points to a troubling contradiction at the heart of global constitutionalism: While the global constitutionalism project invests considerable time and effort in building a corpus of distinctly ‘public’ constitutional norms and principles and ignores the ‘private’ and the economy, the only law that is both ‘global’ and ‘constitutional’ in the strictest sense, is yet another trinity: property rights, free trade and investment protection. At least in the legal strand of the global constitutionalism project, power and wealth disparities between the Global South and Global North are understood as givens, not as produced. At first glance, this seems to contradict the fact that the WTO and socio-economic rights did serve as the starting point of the whole debate on constitutionalisation (Petersmann 1998; Walker 2001; Howse and Nicolaidis 2001). However, most proponents of this debate argue for the constitutionalisation of international economic law as a distinct regime and not of the international legal order as a whole. They take ‘the market’ as a natural phenomenon and explicitly do not endorse an understanding of markets as being co-produced by law (and politics). The same holds true for a functionalist strand of the global constitutionalism literature that is more open to making references to the economy (see e.g., Dunoff and Trachtman 2009). Here, again, the globalised market is seen as a given and global constitutionalism as responding to it. Finally, while the debate around socio-economic rights has shown some promise in addressing issues of distributive justice and contributing a Global South perspective to global constitutionalism (Bilchitz 2013, p. 42), the limited scope of this endeavour has been pointedly highlighted. It is a sad and widely known fact that the age of human rights has also been the age of exploding inequality (Moyn 2018). The critical account of the relationship between socio-economic rights and a vanishing commitment to material equality highlights the limited scope of these rights as largely compliant with a neo-liberal economic order (Whyte 2019; Marks 2013), once again leaving us with the same problem: a self-contained regime detached from the economy and distributive justice. What are the reasons for the conspicuous absence of the economy and, in its wake, of questions of equal distribution of power and goods in global constitutionalism? Can it – in a twisted sense of neutrality – somehow be read as a form of critical distance to global capitalism or is it just a way of legitimising it? After all, absence might be not the right frame to discuss this lacuna, since – as Bonaventura de Sousa Santos so pointedly observes in his ‘sociology of absences’: what does not exist is in fact actively produced as non-existent (de Sousa Santos

2 Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments, signed 25 November 1959, (1963) 457 UNTS 23 (entered into force 28 April 1962).

178  Handbook on global constitutionalism 2007, p. 45). When was the economy produced as non-existent in international law and subsequently in global constitutionalism? As always, there are many accounts of how we got here. First of all, global constitutional law reproduces the public-private divide that has historically been established by the early modern state and endorsed by eighteenth and nineteenth century constitutionalism. By establishing a ‘public law’ regime for taxation and market interventions, economic activity is established as the realm of private law and enterprise in the first place. As we have already seen, constitutional law played a crucial role in the division of the political from the economy and still does. And here we go again: While private law is generally considered to fall outside the scope of global constitutionalism, the global norms that are created here are explicitly designed to benefit individuals. By regulating states (public) and focusing on improving trade conditions for private actors, international trade law constantly applies and reinforces this dichotomy (Messenger 2016), which consequently leads to the conundrum of public authority feeding private power (Cutler 2003). The benefiting private actors are regularly reconstructed as ‘the public’. In this vein, Ernst-Ulrich Petersmann, in his book review of Quinn Slobodian’s Globalists, tries to secure the contested social justice and democratic credentials of his model of constitutionalisation of international economic law by referring to the ‘billions of “cosmopolitan market actors”’ as potential beneficiaries of his vision (Petersmann 2018, pp. 920–1). The usual mistake in this and parallel accounts is to equate market actors with political actors, conflating the private and the public sphere. Conversely, public concerns that might revolve around questions of environmental or distributive justice, are framed as private concerns – by definition – cannot be the object of democratic contestation (Schwöbel-Patel 2020). A variant of this argument is the narrative that it was precisely the rise of a particular kind of ‘ordo-globalism’ in the early twentieth century that led to an encasement of the market and that shortly after was hypostasised by proponents like Ernst-Ulrich Petersmann into a constitutionalised version of the international economic order. The Geneva School neoliberals believed that democracy constituted a problem for the free flow of capital. Their aim was thus to create norms and institutions that prevent the politicisation of the economy. The vehicle of this venture was precisely what Quinn Slobodian calls ‘encasement of the market’: the divide between the public and the private sphere resulting in a distinct form of legal-institutional protection of the market (Slobodian 2018). While the establishment of the WTO for many global constitutionalists still remains the greatest achievement, its crisis and evident failure to accommodate the interests of the Global South, according to them, should not infect the global constitutionalism project. Against this background, it seems only logical that the following generation of (especially German) constitutionalist scholars dropped any reference to the material and devoted themselves to a constitutionalism purged of all economic content. In their idealistic version of the global constitutionalism project, the focus lies on universal human rights, international institutions, universal principles as a means for peace and prosperity – liberal democracy without reference to the free market (Peters 2012, p. 130; Paulus 2009; Fassbender 1998). Aware of the dark legacy of National Socialism – including its economic imperialism – and informed by the experience of the stabilising factor of the post-fascist German Constitution, the universalisation of legalist-moral principles seemed to be the order of the day (Schwöbel-Patel 2020). At the same time, albeit seemingly not reflected, this idealistic version of a normative global constitutionalism fits all too well the interests of an economically potent middle power. More than many other countries in the world, Germany relies on the development of international law in view of its dependence on natural resources

Postcolonial global constitutionalism  179 from the Global South and its export of industrial goods. By subscribing to a vision of global constitutionalism that is bereft of references to the economy and cannot be irritated by exploding inequality, this strand of global constitutionalism invites neo-liberal imperatives into the centre of international law generally, namely its structure and conception of what it means to be sovereign. This leads us to another reading that focuses on international law itself. Here, the universalisation of the principle of sovereign equality was only possible through the institutional and conceptual divide between the economic and political sphere. It took shape in the separation of the institutions of the United Nations on the one side and the Bretton Woods institutions and their successor institutions on the other side. The divide between the political system and the economy (and economic inequality) is not an inherent necessity of international law, which flows from the principle of free trade or from statehood as the building block of the international legal order. In post-war international law, however, the institutional separation of sovereign equality and economic inequality initially supported the aim of ideological neutrality with respect to domestic economic policy as long as the order was supported by two empires with opposing economic systems (Boysen 2021). International law between sovereign, politically equal states should be formal, rational law. However, this set-up has huge implications for the newly independent states of the Global South. Equal sovereignty as the promise of political self-determination comes at the price of adapting to the model of the European territorial state. While the states of the Global South pursue political and economic independence by securing permanent sovereignty over their natural resources (PSNR), the emancipatory impact of PSNR is undermined by functionalist international law. International law systematically separates international politics (United Nations) from the international economy (Bretton Woods), thereby perpetuating and stabilising, through formally equal law, the colonial relations of dependence that it has politically overcome. The claim to the universality of international law subsequently universalises preferences of the North, especially: economic growth and the interest in protection of supposedly ‘common’ environmental goods. International law thus becomes an instrument for achieving growth, ‘development’ and the international regulation of the natural environment.

TRANSNATIONAL CONSTITUTIONALISM It has been shown that in its traditional form, global constitutionalism supports an architecture of domination, the continued economic exploitation of the natural environment of the Global South and the inequalities that come with it. While it therefore seems urgent to decolonise global constitutionalism, it is hard to imagine it as a counter-hegemonic tool and to escape the path dependencies of a model that is deeply entrenched in current international law. The endeavour of decolonising global constitutionalism means something different than what it meant to decolonise the international legal order after the end of imperialism, when legal powers to colonial appropriation were abolished and the right to self-determination was finally acknowledged. Today, decolonising global constitutionalism is not primarily about removing titles, banning concepts, or reversing treaties. A postcolonial framework of global constitutional law that is committed to building a ‘constitutionalism from below/for the wretched’ (Kumar 2017), would have to leave the familiar categories of European and North American constitutionalism and engage with ‘modernity’s outside, fissures, and borders’ (Mignolo

180  Handbook on global constitutionalism and Walsh 2018, ‘Interculturality and Decoloniality’, p. 74). Alternative approaches face major obstacles, to say the least. They are caught in the dilemma of either being so similar to the current constitutionalist framework that they effectively fade in comparison with the original, or so different that they are ridiculed by the dominant geopolitics of knowledge (Schwöbel-Patel 2020). Is there a way to escape this quandary? For the study of global constitutional law, a first step would require the adoption of an up-to-date law-and-political-economy approach in its description of the fabric of law (Britton-Purdy et al 2020). This implies questioning the powerful distinction of constitutional and non-constitutional law as well as the divide between public and private law more generally. In this vein, decolonising global constitutionalism starts with addressing the interplay of colonial law, transnational private law, domestic law, and international law in enabling and constraining global capitalism across time (Alter 2021). Taking a closer look at the role of law in global political economy will enable us to see world trade more as hierarchy than bargain and world politics more as domination than as a system of sovereign equality (Kennedy 2020). Thus, rather than obscuring how states and corporations use law and legal arguments to further their goals and rather than downplaying the way the system of state-supported transnational private contracting and more generally transnational private law reproduce certain colonial era practices, global constitutionalism can tell these stories and highlight law’s role in them. The study of global constitutional law is the political, social, and economic critique of the global and the transnational legal order, in which all legal cultures must have their voice.

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184  Handbook on global constitutionalism Walcott, R. (2021), On Property, Windsor, ON: Biblioasis. Walker, N. (2001), ‘The EU and the WTO: Constitutionalism in a New Key’, in G. de Búrca and J. Scott (eds), The EU and the WTO: Legal and Constitutional Issues, Oxford: Hart, pp. 31–57. Whyte, J. (2019), The Morals of the Market: Human Rights and the Rise of Neoliberalism, London: Verso. Wiener, A. (2014), A Theory of Contestation, Basel: Springer. Wiener, A. and S. Oeter (2017), ‘Introduction: Who recognizes the Emperor’s clothes anymore?’, International Journal of Constitutional Law, 14 (3), 608–21. Wiener, A., A.F. Lang, Jr., J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global constitutionalism: Human rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–5. Wood, E.M. (2012). Liberty and Property: A Social History of Western Political Thought from Renaissance to Enlightenment, London: Verso. Xavier, S. (2016), ‘Learning from Below: Theorising global governance through ethnographies and critical reflections from the Global South’, Windsor Yearbook of Access to Justice, 33 (3), 229–55. Young, I.M. (1991), Justice and the Politics of Difference, Princeton: Princeton University Press.

14. Feminist approaches to global constitutionalism Ruth Houghton

INTRODUCTION1 Sometimes criticised for being a ‘cacophony’ (Mac Amhlaigh 2016, 179), spanning multiple levels of governance and crossing several disciplines, the diversity of global constitutionalism makes it difficult to locate a singular body of literature that is feminist global constitutionalism. Global constitutionalism is used to describe a body of literature that is concerned with the constitutionalisation of international law and international institutions,2 as well as a strand of comparative constitutional scholarship concerned with the convergence of norms across domestic jurisdictions into ‘common global standards’ (Shiner 2019, 13). These distinct projects of global constitutionalism are siloed strands, at times with little interaction across these bodies of literature, and little engagement with feminist critique. Yet, this rhizomic discourse provides opportunities for feminist critique. This chapter does not offer a singular or definitive model of feminist constitutionalism; instead, it relates a study of the different ways different feminisms can engage with global constitutionalism (hereafter feminist global constitutionalism). Reflecting on current feminist work in comparative constitutional scholarship and international law, this chapter explores ways of doing feminist global constitutionalism. This chapter begins in the first section by locating feminist approaches across international law and comparative constitutional law to consider what is meant by feminist global constitutionalism. In reflecting on the scope of feminist global constitutionalism, the second section of this chapter builds on feminist critiques to interrogate the meaning of ‘global’ within global constitutionalism. This includes both a critique of the sites of governance captured by global constitutionalism and a discussion of the risk of assimilating ‘global’ with universalism. Rather than assuming a universal female subject, intersectional feminist approaches have shown how this ignores the many differences of women’s experiences (Crenshaw 1989, 1991; Nash 2018, 9–10; Dawuni 2019, 446). Critiquing universality provides a starting point for centring the different locations, networks and concerns of transnational feminisms within global constitutionalism. There is an emerging epistemological turn in feminist global constitutionalism that is concerned with sources and methods (Sapiano and Baines 2019; Schwöbel-Patel 2011). These feminist critiques of methods of global constitutionalism can be used to further question the global of global constitutionalism as they challenge the claim to universality. The third section 1 With thanks to Aoife O’Donoghue, Sean Molloy, Se-shauna Wheatle and the Handbook editors for their comments on this chapter. 2 Sometimes labelled interchangeably as international or global constitutionalism, see Klabbers (2019).

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186  Handbook on global constitutionalism will discuss global constitutionalism’s sources, histories and futures, as well as explore conversations as a feminist method for global constitutionalism. By sources, I mean both the theoretical underpinnings of global constitutionalism and the legal sources that evidence global constitutionalisation.3 Global constitutionalism is underpinned by a liberal constitutional tradition, derived from a Western, Global North canon.4 Common sources used in the evaluation of the processes of global constitutionalisation are constitutional documents, multi-lateral international treaties (e.g., UN Charter) and Customary international law. Feminists have called for a diversification of these sources, to take into account the work of feminist theorists and activists.5 ‘Histories’ overlaps with sources, for it is through the histories of constitutionalisation (and global constitutionalisation) that global constitutionalism (re)constructs ideas of constituent power, by interrogating who has the power to create a given constitutional order and how that power is exercised. Feminist approaches have demonstrated the narrow histories of constituent power that exclude feminist activism from consideration within global constitutionalism (Irving 2008, 4–13; Irving 2017, 1–3; Gago 2020).6 The sources and histories relied on in global constitutionalism construct particular approaches to the principles of global constitutionalism (such as the rule of law, separation of power, constituent power and rights), which construct silences where women and marginalised groups are further marginalised.7 With respect to ‘Futures’, global constitutionalism encapsulates a hope for an international legal order, but feminists have questioned who that legal order would benefit. Feminists also have hopes for a feminist future, found in novels, short-stories, manifestos, in letters in archives, songs and artwork. Such dreams are often dismissed, but a feminist global constitutionalism would take these seriously to engage with alternative futures for global constitutionalism. Related to the question of sources and histories is the methods utilised by feminist global constitutionalists. Across feminist international law and feminist global constitutionalist scholarship there has been a move to engage in inter-generational conversations (Buchanan and Pahuja 2002; Charlesworth et al 2019; Otto and Grear 2018), including fictionalised accounts (Sapiano and Baines 2019; Otomo 2014, 150). As this chapter will illustrate, feminist global constitutionalism necessitates a conversation across feminist international and comparative law scholarship. Feminist approaches in comparative constitutional law, which have exposed the discrimination faced by women in different countries, make more visible the relative silence of global constitutionalist scholarship when it comes to feminist concerns. The third section considers conversations as a feminist methodology for global constitutionalism. Drawing on feminist work on silences and listening, the section outlines seven features of a feminist conversation for global constitutionalism: these conversations must be ongoing and without a fixed end-point, facilitate discussion across feminisms, be global and inter-generational, centre listening, silences and (un)learning. Research on global constitu For the purposes of this chapter, global constitutionalism references scholarship that discusses theories of constitutionalism in the global context and global constitutionalisation is concerned with the processes of constitutionalisation that are identified and critiqued within international law and global governance (Wiener et al 2012, 5). 4 See Lang and Wiener, Chapter 1 of this Handbook. See also Schwöbel-Patel (2012). 5 See for example, Labenski (2022). 6 See also Houghton and O’Donoghue (2022). 7 For a critique of the Eurocentric focus of Global Constitutionalism see, Vidya Kumar (2017). See also Gina Heathcote and Lucia Kula (2023). 3

Feminist approaches to global constitutionalism  187 tionalism must take seriously the feminist critiques of its sources, histories and the silences it constructs, if global constitutionalism is to strive for a more equal and just world.

LOCATING FEMINIST APPROACHES TO GLOBAL CONSTITUTIONALISM As noted above, global constitutionalism is difficult to demarcate as it encompasses a range of interdisciplinary studies. Whilst some have labelled the study of the convergence of domestic constitutional norms as ‘global constitutionalism’ (Saunders 2009), others have focused on the constitutionalisation of the international legal order.8 This raises the question of what is meant by feminist global constitutionalism. Taking inspiration from these main strands of global constitutionalism – one of which focuses on comparative constitutional work and the other focuses on international law – this section shows that it is possible to locate feminist critiques in comparative constitutionalism and international law so as to build up feminist approaches to global constitutionalism. This section will first outline the relevant feminist critique in international law. Then it will set out the approaches taken in feminist comparative constitutionalism, before considering the feminist critiques within the comparativist strand of global constitutionalism that evaluates the convergence of domestic constitutional norms. The section will then discuss the potential for feminist engagement with an alternative approach to global constitutionalism, as set out by Christine Bell, who advocates that the relationship between international law and domestic constitutional law should be part of the debate in global constitutionalism (Bell 2014). The section brings these feminist critiques together and through a case study on the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) shows what could be meant by feminist global constitutionalism. Within international law, there is feminist critique of some of the foundational aspects of global constitutionalism. Erika de Wet argues jus cogens norms are evidence of the constitutionalisation of international law (de Wet 2006), but feminist scholars offer a critique of these peremptory norms; ‘Charlesworth, Chinkin, and Wright argued that the international prohibition against torture, by incorporating a division between public and private, denies women the same protection as men from torture’ (Charlesworth et al 1991, 627–8 cited in Buss 1997, 364). As a result, women’s experiences and concerns are not taken into account within the hierarchy of norms (Sellers 2022). Human rights and the role of the individual as a rights-holder in international law is often presented as evidence of constitutionalisation (Peters 2009), but feminists have critiqued the construction of the individual within international law (Kapur 2021; Engle et al 2022, 193).9 For some feminist scholars, liberalism defends the universality and abstract nature of the individual ‘because it offers the possibility of articulating universal principles which are not dependent upon essentialist invocations of sex/gender’ (Munro 2007, 59 cited in Conaghan 2013, 85). Other feminist scholars show how this universalising category risks offering a ‘fixed account’ of the individual (Heathcote 2018, For a discussion on these two strands, see Shiner (2019, 13). For an overview of the discussion of feminist approaches to the individual in international law, see Ruth Houghton, ‘The Individual in Feminist Approaches to International Law’ in Thomas Sparks and Anne Peters (eds) Individual in International Law (forthcoming). See also Heathcote (2018). 8 9

188  Handbook on global constitutionalism 13), preferring instead to centre ‘plural subjectivities’ that focus on the diversity of people’s lived experiences (Heathcote 2018, 12). Feminist global constitutionalism should look to these debates within feminist international law. There is a wealth of feminist constitutional scholarship within comparative constitutional law that undertakes gender analyses of constitutions to understand the constitutionalisation of gender (in)equality. Studies have looked at how constitutions impact women and how women use constitutions (Baines and Rubio-Marín 2005; Irving 2008, 2017; MacKinnon 2012). The initial focus was on substantive rights protection (Atrey 2022, 614–15), including reproductive rights and equality provisions. In particular, within this literature there is a concern about equality, and specifically with the nature of equality provisions adopted within constitutions, comparing formal and substantive equality (Baines and Rubio-Marín 2005, 13–14). Ruth Rubio-Marín identifies a ‘participation turn’ within comparative constitutionalism that was concerned with feminist critiques of constitution-making processes and women’s participation in constitutional change (Rubio-Marín 2020, 235). Central to this feminist approach is a call for women to be included as constitutional actors including as constituent power holders, constituted power holders and rights holders (Baines and Rubio-Marín 2005; Irving 2008, 20; Irving 2017, 13). Feminist approaches to global constitutionalism could look to the agendas for feminist constitutionalisation, which combine a substantive and participatory focus, outlining practical reforms for facilitating greater institutional access, participation of women as constitutional actors, and substantive rights protection (Baines and Rubio-Marín 2005). Aoife O’Donoghue argues that feminist constitutionalism also needs to reflect on the core constitutional concepts within constitutionalism (O’Donoghue 2013a, 236), for example the rule of law, human rights, separation of powers and democratic legitimacy.10 Feminist constitutionalism should consider the work these concepts do to exclude women and minorities and to subdue feminist change, as well as to reconceptualise these concepts through a feminist lens. Susan Williams’ work on dialogic democracy starts to do some of this conceptual work. Williams demonstrates how the ‘participatory turn’ is predicated on ideas of participation, representation and dialogue, which can work to downplay the ‘meaningful’ participation of women and minority groups (Williams 2019). She shows how dialogue has a fixed end-point, how representation does not necessarily facilitate the exchange of ideas between a representative and the represented, and how these concepts are used without considering the power dynamics within specific dialogues. Williams begins to interrogate ideas of representation to show how alternative models could be used to enhance women’s voices within constitution-making (Williams 2019, 352). Beverley Baines and Ruth Rubio-Marín highlight how ‘three major constitutional law categories – federalism, autonomy, and equality – might capture women’s claims, [but] they also might distort and/or impoverish them’ (Baines and Rubio-Marín 2005, 4). Similarly, Aoife O’Donoghue and Ruth Houghton have questioned whether the core tenets of constitutionalism – separation of powers, rule of law, and democratic legitimacy – can inculcate feminist approaches (O’Donoghue and Houghton 2019). Comparative constitutionalism – even where the focus is on global perspectives (Baines et al 2012a) – is distinct from the global constitutionalist project that seeks to evaluate the convergence of constitutional norms across domestic constitutional systems around the world to form an emerging common ‘gene pool’ of constitutional norms (Saunders 2009, 1). 10 For a discussion on the tenets of constitutionalism in global constitutionalism see, Lang and Wiener, Chapter 1 of this Handbook as well as O’Donoghue (2014, 14–53).

Feminist approaches to global constitutionalism  189 Within this project, feminist scholars investigate the convergence or divergence of norms that have particular impact on women, for example reproductive rights (Dixon and Bond 2017). However, the ‘rhetoric’ of commonality has been criticised by feminists for its ‘crude normativism’ (Suk 2018, 163). Rather than attempting to ‘tally up’ constitutional provisions to determine a ‘transnational phenomenon’, Julie Suk argues that global constitutionalism (as a comparative project), should be about ‘revealing what is possible’ (Suk 2018, 163). Whilst there are feminist approaches within this comparative strand of global constitutionalism and there are feminist critiques of the strand of global constitutionalism that focuses more on international law (O’Donoghue and Houghton 2019; Houghton and O’Donoghue 2020; Sapiano and Baines 2019), neither strand inculcates the wealth of feminist critiques within their respective disciplines of comparative law and international law. A feminist approach to global constitutionalism would need to draw its critiques from across feminist approaches to international law and feminist comparative constitutionalism. There is an additional dimension to global constitutionalism, which Bell highlights, and that is the interaction between international law and constitutional law (Bell 2014). Specifically, Bell focuses on the role of international law in constitution-drafting (Bell 2014). This dimension is important for feminist constitutionalism because of the increasing role of international law in ensuring women’s participation in constitution-drafting. Christina Murray and Cindy Wittke demonstrate how international law shapes gender-sensitive constitution-drafting (Murray and Wittke 2017; Rubio-Marín 2020, 252). The role of international law in constitution-making ‘has also opened unprecedented avenues for women’s organisations to have access to international aid and international networks’ (Rubio-Marín and Irving 2019, 4). Going beyond the process, to look at the substance of constitutions, Helen Irving and Ruth Rubio-Marín have shown how international law shapes domestic constitutions and judicial interpretations (Rubio-Marín and Irving 2019). For example, it is claimed that where constitutional regimes ‘have accorded a special place for international norms in the constitutional order’, it has ‘made a significant impact on the gender sympathies of the constitutional bench’ (Baines and Rubio-Marín 2005, 11). Moreover, Catharine MacKinnon argues that international law can fill the gaps in domestic constitutional law because international law ‘can supplement, supplant, or suffuse domestic law on gender questions’ (MacKinnon 2012, 402 ). Bell’s critique reminds us of the need for feminist global constitutionalism to explore the interactions across the constitutionalisation of international law, comparative constitutional law and the intersections between international law and constitutional law. CEDAW is one example where feminist critique spans the interrelationship between international law and constitutional law and it can be used to demonstrate what a feminist global constitutional analysis uncovers. Across feminist constitutional literature there has been a focus on CEDAW, with scholars noting that there are a number of instances where women’s organisations have successfully called for the incorporation of CEDAW provisions within a constitution (Rubio-Marín and Morgan 2004, 121–2). Within feminist comparative constitutional law, international law (and in particular CEDAW) is, for the most part, presented as having ‘positive impact on women’s constitutional status’ (Rubio-Marín and Morgan 2004, 117). Whilst there is an acknowledgement that this is not always the case, not least because balancing rights within a human rights framework does not guarantee protection of women’s rights (Rubio-Marín and Morgan 2004, 117; Krivenko 2009), feminist comparative constitutionalism has not engaged substantially with the critique by feminist international lawyers.

190  Handbook on global constitutionalism Within feminist international law, CEDAW is criticised for its construction of women, an inconsistent approach to intersectionality, and a lack of enforcement. Within CEDAW there are no provisions recognising the intersectionality of identity. Intersectionality, first coined by Kimberlé Crenshaw in 1989, is used to show how race, sex, gender, class, sexual orientation, and ability intersect to discriminate and oppress (Crenshaw 1989, 1991; Nash 2018, 9–10). In not recognising intersectionality in the text of the Convention, CEDAW has been critiqued for ignoring the diversity of women’s experiences (Campbell 2015, 486). There is also a lack of enforcement of CEDAW; it is ‘the most heavily reserved international human rights treaty’, and there is ‘poor compliance’ with the enforcement mechanisms (Hodson 2014, 563, 566). Some feminist international legal scholars criticise the use of CEDAW by some women’s networks to undermine the rights of more marginalised women (Otto 2006). A feminist global constitutional account of CEDAW would take into account these criticisms. A feminist global constitutionalist analysis, which draws on the perspectives of comparative constitutionalists and international law, demonstrates a more complex picture of the role of CEDAW in advancing the protection of women’s rights. It shows how international norms (despite their lack of international enforcement mechanisms) can be incorporated into domestic constitutions, and how they can provide ‘crucial leverage for advancing women’s rights on specific issues and support for local nongovernmental organizations’ (MacKinnon 2012, 403, see also O’Rourke and Swaine 2018). Drawing on international relations scholarship on the contestation and constitution of norms would also further a feminist global constitutionalist discussion of the role of CEDAW, as such research takes into account the range of state and non-state actors and the relations between international legal frameworks and institutions (O’Rourke and Swaine 2018; True and Wiener 2019). Incorporating the critique by international feminists, feminist global constitutionalism can also show how white Western feminisms have used CEDAW to ‘justify efforts to “abolish” non-Western cultural practices’ in the name of protecting Global South women (Otto 2006, 343). Focusing on the place of CEDAW within domestic constitutions misses the use of the Convention by white Western feminists to construct Global South women as being in need of saving. As will be discussed below, this idea of ‘global sisterhood’, where some women are constructed as victims to be saved, needs to be resisted within feminist global constitutionalism. In suggesting that lessons can be learnt when reading across comparative constitutionalism and international law, I am not advocating that feminist global constitutionalism adopts a simple process of ‘borrowing’ concepts from comparative constitutionalism or international law. Karen Knop highlights the ‘limits of borrowing from other fields of study’ (Knop 2004, 6), because of the nuances in how concepts can be applied in different sites of governance. Global constitutionalism is often critiqued for the way it seeks to ‘import’ constitutional concepts (O’Donoghue 2013b). In understanding how international and constitutional law impact on women (both positively and negatively), as well as how women use these legal frameworks, feminist global constitutionalism can be more than a bird’s-eye view of international obligations and can offer more than a one-dimensional, ‘nearside’ account of a domestic constitutional order (Rubio-Marín and Morgan 2004, 113).

Feminist approaches to global constitutionalism  191

INTERROGATING THE ‘GLOBAL’ IN FEMINIST GLOBAL CONSTITUTIONALISM Part of locating feminist global constitutionalism is interrogating the meaning of ‘global’ (Fierke and Jabri 2019; Anderl and Witt 2020). This section considers feminist critiques of the meaning of ‘global’ that can inform the approach to feminist global constitutionalism. Both comparative constitutional law and international law are framed by the state. Feminist global constitutionalism ‘cannot adequately challenge gender injustice if they remain within the previously taken-for-granted frame of the modern territorial state’ (Fraser 2009, 112 cited in O’Donoghue and Houghton 2019, 81). This is because it overlooks the impact of private actors (be those individuals or transnational corporations) on women’s lives. In addition to the role and impact of non-state entities, feminist approaches need to consider the scales of governance discussed within global constitutionalism. As Ruth Rubio-Marín and Martha Morgan have shown ‘[t]he relationship between national and world citizenship is increasingly complex but women remain subject to the interrelated consequences of each of these statuses, as well as to those flowing from their membership in more local forms of government and in non-geographically defined communities’ (Rubio-Marín and Morgan 2004, 113). As such, ‘global’ in feminist global constitutionalism must encompass more than just domestic constitutional law and international law, and take into account other levels of governance: local, national, international and regional (here meaning feminist critiques of regional organisations and systems such as the European Union (Shaw 2000), the African Union, and the Inter-American human rights system (García-Del Moral 2019), as well as regional networks established by women). Baines and Rubio-Marín highlight how decision-making that impacts women is situated across these levels of governance and how some constitutions have tended ‘to allocate “private” matters to the regional [here meaning local] entities rather than to the national level’ (Baines and Rubio-Marín 2005, 12). Feminist approaches to global constitutionalism must ask questions about how global constitutionalism uses these scales of governance and where decision-making is taking place. Gunther Teubner’s societal constitutionalism fractures the idea of distinct levels of governance, framed by the state. Instead, Teubner argues that autonomous systems such as civil society, business corporations and private organizations can develop as constitutional orders (Teubner 2010, 328). As societal constitutionalism discusses the constitutionalisation of private sectors, it provides an opportunity for feminist analyses of the inequalities within these autonomous systems which are often side-lined in global constitutionalism. These autonomous constitutions emerge within different sectors of society, across the different levels of governance and within them. A feminist analysis would centre the work of feminist activist networks that operate within these autonomous systems and across these scales of governance. The ‘global’ in feminist global constitutionalism, in addition to the questions of scale, requires a critique of universality and an understanding of feminist transnational solidarity. The ‘global’ risks being aligned with a claim to universalism (Jones 2022). Post-colonial feminist scholars in international law have shown the problem with universalism in relation to human rights, where the ‘proclaimed universalism of human rights’ risks excluding peripheral and marginalised voices (Jones 2022, 2, see also Kapur 2002). Feminist theory is also met with critiques of universalism, for example ‘global feminism’ has been critiqued for its prioritisation of the experiences and interests of white Western women (Grewal and Kaplan 1994; Ghadery and Kalantry 2022). Related to ‘global feminism’ is the idea of a ‘global sisterhood’,

192  Handbook on global constitutionalism a form of solidarity that draws on the idea that there are universal shared commonalities among women. As discussed above, scholars have shown how this notion of ‘sisterhood’ has given rise to harmful practices of Global North women trying to ‘save’ women in the Global South (Orford 2002; Kapur 2022). Feminist approaches to global constitutionalism must be alive to these risks of universalism. Doris Buss warns against using ‘Western analytic categories and Western ways of knowing’ as it acts to filter women’s experiences through those lenses (Buss 1997, 366). One example of an analytic category used within feminist theory is the public/private divide; where the public space is traditionally constructed as being within the purview of men, and where women are traditionally relegated to the private sphere of the home. Vasuki Nesiah reflects on the ‘need to unpack the universalization of analytical prisms such as the public/private distinction and [to] examine the conditions of their production’ (Nesiah 2011, 3). Scholars have highlighted how the Western feminist analysis of the gendered public/private divide can obscure a ‘colonialized or racialized context’ and thus exclude the lived experiences of people (Buss 1997, 361–2). Decolonial feminists have shown how law, policy, and missionaries utilised hierarchies of race and gender to impose a public/private divide as a tool of colonialism (Coetzee 2019), and intersectional feminists remind us of the need to consider not just a gendered public/private divide, but the way race, class, sexuality, and gender are used to exclude people and render their experiences invisible. Nesiah calls for an investigation of the ‘multiple genealogies of the public/private in diverse and specific contexts’ (Nesiah 2011, 3), and to avoid the risks of universalism feminist global constitutionalism should subject other analytical categories to the same critique. ‘Global’ in feminist global constitutionalism should not mean universal, but rather it embraces the diversity of women’s lived experiences. Related to universalism is essentialism. Gender essentialism ‘refers to the fixing of certain attributes to women’, where these ‘attributes are considered to be shared by all women’ (Kapur 2002, 7). As noted above, feminists disagree on the strategic use of universal categories; some consider universal ideas of the individual to mitigate the risks of gendered-essentialism, others see how essentialist ideas of ‘women’ can work to silence and render invisible people’s different experiences (Munro 2007, 59 cited in Conaghan 2013, 85). For Gina Heathcote, emphasis needs to be placed on the plurality of differences between people (Heathcote 2019), taking into account the specific contexts people are situated within, so as to disrupt the notion of a ‘universal’ standard or experience. This requires incorporating intersectional feminist approaches that are concerned with how the intersectionality of race, gender, sex, ability, sexual orientation and class, work to ‘reframe epistemologies’ by considering other ways of knowing and by challenging the assumptions of gender as fixed (Heathcote 2019, 14). Feminist approaches to global constitutionalism can be informed by transnational feminist solidarity, which rejects the essentialisation of ‘woman’ and the universalisation of women’s experiences, where this universalisation is premised on white Western women’s experiences (Ghadery and Kalantry 2022), and instead ‘presumes differences between varied locations rather than claiming sameness’ (Tambe and Thayer 2021, 1). Feminist approaches to global constitutionalism should be built on a ‘global’ that inculcates the diversity of women’s experiences, and the different and specific contexts women are situated within. Building on transnational feminist solidarity, a feminist approach to global constitutionalism resists conflating the global aspect of the discussion with universality and essentialism. A feminist global constitutionalism should interrogate the construction of fixed scales of

Feminist approaches to global constitutionalism  193 governance that can work to locate responses to women’s concerns within local levels of governance, to make incomprehensible the impact of private and non-state entities, and to obscure the work of transnational feminist solidarity networks. As will be explored in the next section, a methodological turn is needed to ensure that feminist global constitutionalism does not replicate a Global North vision of global constitutionalism.

RETHINKING FEMINIST APPROACHES TO GLOBAL CONSTITUTIONALISM The critique of the ‘global’ highlights the need for an epistemological shift that would reflect on how knowledge is produced, including what sources and methods are used within global constitutionalism. This section will first consider the sources of global constitutionalism, which includes its histories and futures. Then it will explore conversations as an alternative feminist method. Within international law, feminists are engaged in a methodological ‘return’ (Bird 2020, 180, see also Otto and Grear 2018 and Charlesworth et al 2019). In particular, in their inter-generational conversation, Hilary Charlesworth, Gina Heathcote and Emily Jones call for a ‘return to theories and methodologies’ (Charlesworth et al 2019, 82). Taking up this call within global constitutionalism requires reflection on the theories of constitutionalism that are used. This includes both the interrogation of the Global North canonical theories of liberal constitutionalism that are currently relied on, and an engagement with feminist ‘thought’ (including the work of women labelled as proto-feminist11) across history. It would also require engagement with theories of feminism beyond liberal feminism, such as feminisms that are ‘antiracist, anti-homophobic, anticlassist, anti-agesist, and reflective of claims for ableism’ (Baines et al 2012b, 4).12 Global constitutionalism encompasses both a descriptive and normative project (Wiener et al 2012, 8). In the descriptive sense, global constitutionalism is used to explain processes in the international legal order,13 it ‘aims to identify elements of constitutional quality’ that are already present within international law and global governance (Kotzur 2012, 589, see also Peters and Armingeon 2009, 385). To do so, scholars refer to specific international laws, institutions and events. Vidya Kumar critiques the literature for the emphasis that is placed on the ‘triumphant’ events in 1945 which marked the end of World War II and 1989 as the ‘putative end of the Cold War’ (Kumar 2017). What is meant by ‘constitutional quality’ can also be critiqued for being informed by Global North liberal theories of constitutionalism and, as Lang and Wiener outline in Chapter 1 of this Handbook, very often the same historical examples are referred to in discussions on constitutionalism, such as the French or American revolutions. As will be discussed below, feminist global constitutionalism must excavate feminist theories and histories that disrupt these traditional accounts of constitutionalisation and constitutionalism (Rubio-Marín 2022). The normative aspect of global constitutionalism

Proto-feminist is often used for works that pre-date the term ‘feminist’ to avoid so-called anachronistic discussions, however this leads to a periodisation based on a singular understanding of ‘feminism’ (Garrard 2021). 12 For a discussion on posthuman feminism and global constitutionalism, see Jones (2022). 13 For a discussion see Lang and Wiener, Chapter 1 of this Handbook. 11

194  Handbook on global constitutionalism projects visions for a global constitutional order; visions that will guide the ‘progressive development of international law’ (Wiener et al 2012, 7, see also Schwöbel-Patel 2012, 13). Feminist scholarship questions who will benefit under these visions of a global constitutional order (Houghton and O’Donoghue 2020) and a feminist approach to global constitutionalism would centre alternative feminist visions of constitutional futures. Within feminist activism and feminist theory, the ability to imagine, to hope, and to pre-figure an alternative future is crucial. As explored below, Otto and Grear stress the importance of an ‘imagined feminist future’ within international law (Otto and Grear 2018, 353), and feminist global constitutionalism can look to imagined futures in literature and art to offer an alternative starting point for global constitutionalism. Sources, Histories and Futures Sources Global constitutionalist scholarship draws on a variety of sources, such as, international law, international institutional law, international relations theories, historical events, and constitutional law and theory. Within the scholarship, there are sources that provide evidence of constitutionalisation and there are the theories that underpin the various models of constitutionalism that are discussed. Feminist approaches to the sources of global constitutionalism requires both the critique of the current sources as well as engagement with the breadth of women’s international and constitutional thought. As outlined above, feminist international lawyers critique the sources of law relied upon by global constitutionalism because they construct a patriarchal, gendered international legal system that fails to adequately protect the rights of women and renders invisible the lived experiences of women. This includes a critique of the current approach to jus cogens norms in international law (Sellers 2022). Alongside jus cogens norms, de Wet argued that erga omnes obligations evidence constitutionalisation because they are predicated on an international community (de Wet 2006). Charlesworth and Chinkin argued that even if a shift to include the international community in law-creation could facilitate the inclusion of non-state actors, there was a risk that women’s voices would still be ignored (Charlesworth and Chinkin 2000, 95). These feminist critiques of the sources of global constitutionalism should be taken into account within mainstream global constitutionalist discussions. Constitutional and international legal theory is another key source of global constitutionalism. Through their project, which showcased international relations scholarship by women from the nineteenth and mid-twentieth century, Owens and Rietzler show how ‘thought’ and theory are not only found in political treatises or academic articles. Rather, women’s thought can be located in journalistic writings (Umoren 2021), ‘lecture halls, and seminar rooms’ (Owens and Rietzler 2021, 17). The ‘street scholarship’ of the Black working-class intellectual Mittie Maude Lena Gordon, which involves the dissemination of ideas to groups of people, shows the ‘importance of orality as well as oratory’ as sites of feminist theorising (Taylor 2006, 153–5 cited in Owens and Rietzler 2021, 15). Feminist global constitutionalism must take as broad an approach to feminist constitutional theory and thought, so as to not exclude sites of knowledge production frequented by women. In addition to constitutional law and theory, international law and international relations scholarship, feminist global constitutionalism must continue to engage with the breadth of feminist theories. For Shreya Atrey, feminist constitutionalism as a method should unpack

Feminist approaches to global constitutionalism  195 which feminist approach is being utilised in a legal argument, in a judgment, or in a constitutional convention (Atrey 2022), and this would require an understanding of different feminist approaches. As noted above, there is no singular feminist constitutionalism. Rather, there are many feminisms and therefore multiple feminist approaches to global constitutionalism. Within feminist global constitutionalism, the need to inculcate the diversity of women’s lived experiences requires engagement with a range of feminist theories, including intersectional, Black, post-colonial and decolonial feminist approaches. Histories Within constitutional theory it is the histories of revolutions that often act as evidence for exercises of constituent power (Arato 2017, 45–105; Rubinelli 2020, 5). Feminist constitutionalism revisits these histories to uncover the participation (and active exclusion) of women within constitutional change. The ‘participation turn’ in constitutionalism considers the participation of women in constitutional change; whether this is as constituent assembly delegates, litigators, or judges. But conceptualising this ‘turn’ as taking place in the 1980s and 1990s can obscure the work of women activists throughout history and around the world (Rubio-Marín 2020, 235). Feminist comparative constitutionalists have been instrumental in illuminating these activists and their campaigns. To locate women’s involvement in constitutional change requires a more expansive view – to look beyond the ‘official and traditional sites and institutions’ (Rubio-Marín 2020, 258; 2022, 206), such as constitutional assemblies – and see the work done by women through lobbying (Irving 2008, 15), or protests (Ghadery 2022), or even at kitchen tables (Gago 2020, 155). Irving refers to feminist manifestos, such as the ‘Declaration of the Rights of Woman and the Female Citizen’ (1791) by Olympe de Gouges and the Seneca Falls ‘Declaration of Sentiments and Resolutions’ coordinated by Elizabeth Cady Stanton in 1848, as examples of women critiquing constitutional processes (Irving 2008, 7–9). In her manifesto, de Gouges ‘points to the omission of women from the French Declaration of the Rights of Man’ (Houghton and O’Donoghue 2021). The ‘Declaration of Sentiments and Resolutions’ exposes ‘the exclusionary nature of the Declaration of Independence and the constitutional arrangements that followed; it acts to expose what was omitted in the text and highlight oppressions that remained’ (Houghton and O’Donoghue 2021). These examples show how constitutionalism did not (and does not always) serve women, and how their voices were missing from processes of constitutional change. Both de Gouges’ and Stanton’s manifestos also show how women are sometimes actively excluded from constitutional processes and political decision-making. De Gouges was ‘considered so counter-revolutionary’ that she was arrested and executed as part of the Terror in France in 1793 (Lyon 1999, 51), and Irving highlights how Stanton was excluded from acting as a delegate at the World Anti-Slavery Convention in 1840 because she was a woman (Irving 2008, 9). However, there are historical examples of women participating in constitution-making that highlight the limitations of the ‘participation turn’ in feminist constitutionalism. Gertrude Bell was an archaeologist and diplomat. She worked as part of the British colonial intelligence services and civil administration in Iraq from 1916. She is known for drawing the territorial boundaries of the new state of Iraq and playing a role in drafting the Iraq Constitution in 1921. Irving refers to Bell as an early example of women’s ‘direct involvement’ in constitution-making (Irving 2017, 2). Heathcote calls on feminist scholars to critique ‘suc-

196  Handbook on global constitutionalism cesses’ of women’s participation in international law (Heathcote 2019, 1), and such calls should be heeded within feminist constitutionalism. Celebrating Bell’s involvement as a ‘success’ for women’s participation in constitutional change is to overlook this exercise of British colonialism, under the auspices of a British mandate to govern Iraq,14 how the drafting of the constitution was not open to the people in the region, and that only men could vote in the elections to establish the Constituent Assembly that would later adopt the constitution. The epistemological shift or methodological turn problematises the ‘participatory turn’ of feminist constitutionalism, as well as offer ways to move beyond mere participation and inclusion of women, towards transforming constitutionalism. Futures Proffering visions, agendas or manifestos for the future of feminist constitutionalism is a core part of the feminist constitutional literature. In their agenda, Baines and Rubio-Marín outline a ‘feminist constitutional agenda’, which ‘should address the position of women with respect to: (i) constitutional agency, (ii) constitutional rights, (iii) constitutionally structured diversity, (iv) constitutional equality; and give special treatment to (v) women’s reproductive rights and sexual autonomy; (vi) women’s rights within the family; and, (vii) women’s socioeconomic development and democratic rights’ (Baines and Rubio-Marín 2005, 4). In a manifesto, O’Donoghue and Houghton outlined the need for: (1) women as active agenda setters; (2) women’s co-authorship of global constitutions; (3) women’s substantive participation in ‘living’ global constitutions; (4) a Right of Rejection so that elements of a global constitutional agenda can be discarded; (5) abandoning the idealised citizen so constituent and constituted power reflects who we really are; (6) ‘global’ necessitates a move beyond a Euro-centric gaze; and (7) a Right to Revolt, which encapsulates the ‘continual challenges to constituted power’ (O’Donoghue and Houghton 2018). Both these agendas are offered as the starting point of a conversation, and as feminist agendas they must change over time to accommodate the new interests and concerns of feminists (Nesiah 2011). As part of that conversation then, feminist global constitutionalism needs to consider alternative visions by activists and theorists. This section discusses some examples of such visions of feminist futures, which might otherwise be overlooked as sites of knowledge production in global constitutionalism. Feminist futures can be found in feminist utopian-thinking. Science fiction has emerged as one site of feminist utopian-thinking. Otto for example, reads science fiction to learn about alternative feminist futures (Otto and Grear 2018). O’Donoghue and Houghton proffer feminist science fiction literature as alternative starting points for global constitutionalism (Houghton and O’Donoghue 2020). For Patricia Melzer, science fiction is crucial for ‘feminist theorizing outside the science fiction community’ and it ‘can be understood as part of a feminist criticism of existing power relations’ (Melzer 2006, 9). Short-stories and novels by feminist science fiction writers offer critiques of the conceptualisations of community and constituent power, as well as facilitating discussion on how these constitutional concepts could be reconceptualised. These alternative worlds in science fiction provide a way of harnessing the ‘feminist future imaginaries’ and related hope, which Otto has argued needs to be brought within international legal scholarship (Otto and Grear 2018).

For a discussion, see Craven (2021, 207), Tzouvala (2020, 100), and Natarajan (2011, 809).

14

Feminist approaches to global constitutionalism  197 Imagining feminist constitutional futures plays an important role within feminist constitutionalism. Davina Cooper’s theories of ‘conceptual pre-figuring’ show the power of acting ‘as if’ something can happen or has happened (Cooper 2020). Such pre-figuration can demonstrate the possibility of new and alternative ways of doing governance. There are examples of pre-figuration within feminist constitutional activism. Rubio-Marín outlines examples where women have organised mock Constituent Assemblies and where women have written draft constitutions (Rubio-Marín 2020, 248; 2022, 149). In Australia, the outcomes from the Women’s Constitutional Convention ‘were presented to the Chair of the Government’s Constitutional Convention and were raised on the Convention floor during the proceedings’ (Karpin and O’Connell 2005, 22 cited in Rubio-Marín 2020, 248). In Bolivia, the ‘Political, Feminist Constitution of the State: The Impossible Country We Build as Women’ imagines an alternative state infrastructure, constitution-drafting process, and constitutional text (Galindo and Mujeres Creando 2013). Written by the Mujeres Creando collective, which are an anarcha-feminist collective, as a response to the 2011 Pluri-national Constitution in Bolivia, the ‘Feminist Constitution’ critiques the Bolivian constitution and imagines an alternative constitution; one that centres women’s lived experiences and offers imagined futures of how society could be constituted (for example, without the military). Throughout, Mujeres Creando provide explanations for the provisions within the ‘Feminist Constitution’, thus outlining the work that needs to be done to move towards a feminist constitutional order. In contrast to the Australian Women’s Constitutional Convention that was presented to the Constitutional Convention, Mujeres Creando’s alternative constitution was meant to stand apart from the constitution; ‘Mujeres Creando remained strongly critical of the Constituent Assembly and the Morales government in general, in the belief that Morales used gender issues instrumentally in the process of consolidating his power’ (Rousseau 2011, 14 cited in Rubio-Marín 2020, 244). They state: ‘We only want to make clear that there are other ways of conceiving of the voice of women and the transformations that are urgent in our society’ (Galindo and Mujeres Creando 2013). Both examples show the duality of speculative work, which works to expose the harms of current realties and offer imagined futures. Women’s dreams and aspirations for constitutional futures are conveyed in many different forms of communication.15 In Somalia, women used poetry to convey their constitutional aspirations to constitution-makers (Rubio-Marín and Irving 2019, 13). Manifestos that offer utopian visions of feminist futures can be in the form of art and craft, song, performance and protest.16 As part of the methodological turn, feminist global constitutionalist scholarship looks for these examples of non-legal texts that nevertheless intersect with law (Heathcote 2019, 6). Within constitutional scholarship, there have been attempts to imagine aspects of a feminist constitution.17 Such thought-experiments highlight the sorts of questions that need to be asked about the constitutional processes, the substance and scope of the constitution, as well as highlighting the tensions that arise between feminist approaches (Sullivan 2002, 747). Kathleen Sullivan, in her experiment, imagines a ‘hypothetical set of feminist drafters’ for

For a discussion on the role of music and dance in feminist protests, see Ghadery (2022). For a discussion on feminist manifestos, see Houghton and O’Donoghue (2022). 17 See also Beverley Baines’ (2017) reflection on what it would mean to have an all-female US Supreme Court. In his thought-experience, Ori Aronson (2017–2018), considers a rule that would make the next forty presidents of the US women. Though focused on a ‘participatory turn’ in constitutionalism, these thought-experiments offer some examples for the ways of doing feminist constitutionalism. 15 16

198  Handbook on global constitutionalism a US constitution, and raises five questions that they would need to consider; the type of equality provision, formal or substantive equality, private actions, negative or positive rights, and whether to have a judicially enforceable constitution or hortatory norms. Sullivan highlights how feminists disagree when answering these questions.18 This reiterates the importance of Atrey’s focus on the discourse across feminisms, as such an approach unpacks the different feminisms underpinning such thought-experiments (Atrey 2022). Feminist futures and feminist utopias are part of a process of hope, critique and reform (Heathcote 2019, 23). The examples discussed here show how feminists have used pre-figuration to criticise the current constitutional systems or processes and to offer alternative visions that instil hope for further reforms. By reading these feminist futures, as well as working towards an increasing diversification of sources (including feminist theories and histories), feminist global constitutionalism fractures the canonical liberal underpinnings of global constitutionalism. Conversations as a Feminist Method In addition to rethinking the sources, feminist constitutionalism also needs to reconsider its methodologies. The inter-generational conversation between Charlesworth, Heathcote and Jones (Charlesworth et al 2019), as well as the conversation between Otto and Grear (Otto and Grear 2018), demonstrate a way of doing feminist international law, which could be adapted as a way of doing global constitutionalism through the exchange of ideas. Such an approach has already been used. Jenna Sapiano and Beverley Baines wrote an imagined conversation between key feminist thinkers across constitutional law, international law and international relations scholarship (Sapiano and Baines 2019). Building on Cynthia Enloe’s ‘feminist curiosity’, which focuses on ‘the questions you might ask, not just the answers you offer’ (Enloe et al 2016, 541), Sapiano and Baines ask where the women are in global constitutionalist scholarship and how they use gender analysis in their work. Fierke and Jabri – exploring the role of conversations within global international relations – proffer the method of ‘global conversations’ (Fierke and Jabri 2019, 509). Fierke and Jabri distinguish conversations from dialogue, because conversations are ‘a more open-ended exchange that is receptive to difference and by which difference is continuously transformed’ (Fierke and Jabri 2019, 524). These ‘global conversations’ are ‘relational, unfixed and open-ended’ (Fierke and Jabri 2019, 509). Building on Fierke and Jabri’s work, and seeing the role of conversations emerging in global constitutionalism, this section outlines seven features of a feminist conversation for global constitutionalism: conversations must be ongoing and without a fixed end-point, facilitate discussion across feminisms, be global and inter-generational, centre listening, silences and (un)learning. The first feature of the conversation is that it is ongoing. For Heathcote, conversations across feminisms need to be ongoing, and for Nesiah feminist agendas constantly need revising (Heathcote 2019, 72; Nesiah 2011). Reflexive processes of revisiting decisions are also a key aspect of feminist utopias, which are often conceptualised as ‘process’ utopias that reject the idea that utopia is a static destination, with an end-state (Johns 2010; Houghton and O’Donoghue 2020). These open-ended conversations are being reflected in constitutional

18

For an alternative speculative engagement with the US Constitution see Bell (1987).

Feminist approaches to global constitutionalism  199 processes. Constitutionalisation often centres on the constitutional moment, understood as a fixed point in history where a constitution is adopted. Rubio-Marín argues that the ‘participatory turn’ in constitutionalism also changes this focus on the constitutional moment; ‘civic constitutionalism, the claim goes, envisages constitution-making as a conversation that invites all those who are potentially concerned, and is open in terms of new voices and issues’ (Rubio-Marín 2020, 235). This approach seeks to move away from a ‘final act of closure’ to ‘permanently open process’ (Blokker 2016, 65 cited in Rubio-Marín 2020, 235). Keeping a conversation open ensures inequalities are not calcified within the constitution. The second feature is the requirement for conversations across feminisms. Within international law, Otto and Heathcote call for conversations between feminist, queer, intersectional, and post-colonial feminisms (Otto 2015, 300; Heathcote 2019). For Atrey, feminist constitutionalism is about the discourse between feminist approaches to constitutionalism, how these approaches are used differently in constitutional legal arguments, and specifically about the contestation that arises from different feminisms (Atrey 2022). For Atrey, feminist constitutionalism is not something that can be ‘done’ or ‘achieved’, rather it is a continuing process of ‘unravelling’ the different feminist engagements with constitutionalism (Atrey 2022, 611). The third feature of this conversational method is to inculcate a global conversation. The second section of this chapter demonstrated the need for a conversation that takes into account the levels of governance, the plethora of actors and networks, as well as working across international law and comparative constitutional law. Heathcote argues ‘there is a general silence within international law on the intersectional violence within peacetime states that silences alternative knowledge practices and histories and ignores the wilfulness of state structures in harming specific groups’ (Heathcote 2019, 173–4). Feminist comparative constitutional, with its focus within and across states, can help to fill these gaps within international law scholarship. The fourth feature of a feminist global constitutionalist conversation is that it should be inter-generational. The conversation between Charlesworth, Heathcote and Jones offers an ‘inter-generational’ exchange of knowledge (Charlesworth et al 2019). Learning from previous feminist activism is an important part of rethinking the sources and histories of feminist constitutionalism (Delap 2020; Engle 2022). Inter-generational conversations work to complicate the fixed ‘waves’ of feminism, an approach which is critiqued for not correctly reflecting the different agendas of feminist activism. Learning about past feminisms facilitates critiques of instances of co-option, racism and the exclusion of other women (Kapur 2002). Arguably an ‘inter-generational’ approach is also a way of incorporating feminist futures imagined in the past and the present. Listening is a central aspect, and the fifth feature, of feminist conversations. Baines prioritises listening as a method within her own research, for example by listening to women within polygamous relationships (Baines 2012). Otto offers a ‘politics of listening’, which challenges us to ‘think about our collective responsibility to find ways to act on these stories in the present and support the struggles for justice that were being related’ (Otto 2017, 239). For Otto, listening takes multiple forms; ‘listening that educates about the complex causes of conflict and violence, that prompts acknowledgement of the political responsibility of those who are listening, and encourages solidarity and action towards change’ (Otto 2017, 244). The ‘politics of listening’ goes beyond invitations to participate; as Heathcote argues, listening to women is not about trying ‘to save or rescue or even to invite to partici­pate’ (Heathcote 2019, 4–5). Rather we should listen to these ‘feminist voices that have been moved to the peripheries

200  Handbook on global constitutionalism of feminist legal work outside of dominant liberal, radical, and cultural feminisms’ (Heathcote 2019, 4–5, see also Bennoune 2022), and the task for feminist global constitutionalist scholarship is to resist the institutional practices that have side-lined these voices and work to make space for their voices to be heard. Within conversations there are also silences. Silence is the sixth consideration of a feminist global constitutionalist conversation. When Gayatri Chakravorty Spivak asked if the sub-altern can speak, she highlighted how race, gender and colonialism work to oppress people and render them inaudible to mainstream scholarship (Spivak 1988). Silences ‘can refer to being silenced, to not being allowed to speak or use one’s voice without severe consequences, or not being heard or acknowledged’ (Fierke and Jabri 2019, 523). Feminist constitutionalists should interrogate where these silences occur, who is being silenced or not listened to. However, ‘silence may also be deliberate, a decision not to engage or an act of resistance’ (Fierke and Jabri 2019, 523). Feminist constitutional scholars must learn to listen for and to these deliberate silences so that they are not lost as a source of knowledge in the theorisation of constitutionalism. Moreover, Gina Heathcote and Lucia Kula call for silence from dominant liberal, radical and cultural feminisms (Heathcote and Kula 2023). Within international law, Heathcote asks ‘for silence from and to interrupt dominant feminisms’ (Heathcote 2019, 194). Within her own work she attempts to ‘engage the silence required to hear difference’ (Heathcote 2019, 183). Here the methods of listening and silence come together. The seventh and final feature of a feminist global constitutionalist conversation is the requirement of (un)learning. Part of these conversations across feminist theories is about acknowledging the limits of what we know. As Beverley Baines, Dephne Barak-Erez and Tsvi Kahana state ‘[f]eminists do not pretend to know all there is to know about diversity, but rather they proclaim their openness to instruction from the writings and practical expertise of the full range of diversity theorists’ (Baines et al 2012b, 4). Ratna Kapur calls for feminists ‘to listen and learn from unfamiliar, non-liberal knowledge systems’ (Kapur 2022, 274). The conversations must be open to conversations in other disciplines, including Third World Approaches to International Law (TWAIL) that have critiqued the colonial structures of international law.19 Feminist global constitutionalism should be built on an ongoing commitment to unlearning exclusionary Western analytical tools, listening responsibly to the voices of women as they tell their stories and share their dreams, as well as being attentive to the silences today and in the archives.

CONCLUSION Global constitutionalist scholarship has been criticised for overlooking feminist critiques of constitutionalism that are located across comparative constitutionalism (Baines et al 2012a), international constitutionalism (Krivenko 2009), and within global constitutionalism scholarship (O’Donoghue and Houghton 2019; Houghton and O’Donoghue 2020; Sapiano and Baines 2019). Feminist critiques of the principles of global constitutionalism – in particular the global constitutionalist commitment to human rights – are also found in feminist approaches to international law (Rimmer and Ogg 2019). Feminist approaches to global constitutionalism 19 For a discussion on Third World Approaches to International Law and Global Constitutionalism, see Oklopcic (2016).

Feminist approaches to global constitutionalism  201 must draw on these feminist critiques across domestic constitutional law, international law, and global constitutionalism. Feminist approaches to global constitutionalism require a reinterrogation of the meaning of ‘global’. This chapter discussed how ‘global’ involves an appreciation of the relationship between international law and domestic constitutional law to better understand how constitutionalisation affects women. Feminist focus on the impact of law on women exposes the limitations of a scaled approach to global constitutionalism, which conceptualises fixed levels of governance. Instead, feminist global constitutionalism interrogates feminist engagement within and across these levels of governance. ‘Global’ can invoke universal, and a feminist approach resists this move to universality and instead centres transnational feminist solidarity that prioritises the diversity of women’s experiences. In a manifesto for feminist global constitutionalism, O’Donoghue and Houghton question whether it was even possible for global constitutionalisation to be feminist given how entangled it is in conservative constitutional traditions and imperial practices (O’Donoghue and Houghton 2019). The epistemological turn to consider new sources and methodologies goes some way to problematising these structures of global constitutionalism. It also offers a new horizon for feminist global constitutionalism, moving beyond discussions on the inclusion and participation of women. Focusing on the sources, histories and feminist futures (drawn from non-legal and legal texts, in archives, artwork, and protests), can work to challenge the assumptions underpinning core tenets of global constitutionalism, and offer feminist reconceptualisations. One example can be found in Verónica Gago’s work; observing transnational feminist strike actions around the world from 2016, Gago reconceptualises constituent power through a feminist lens (Gago 2020). Gago’s feminist potencia drives for the ‘displacement of the limits that we’ve been made to believe and obey’ (Gago 2020, 2–3). Part of the epistemological turn is the utilisation of conversations as a methodology. This chapter draws on feminist discussions of conversations, listening and silences to outline seven features that should guide feminist global constitutionalist conversations as part of a methodological shift that offers one ‘mechanism to open up the foundational knowledge and assumptions of feminist approaches rather than being limited to participation or quotas for inclusion that are not necessarily transformative in terms of knowledge production’ (Heathcote 2019, 14). These feminist global constitutional conversations must be ongoing and without a fixed end-point, facilitate discussion across feminisms, be global and inter-generational so as to reflect on the past and offer feminist futures, centre responsible listening, be alert to the uses and abuses of silences, and be open to other theories and disciplines as part of an ongoing process of (un)learning.

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204  Handbook on global constitutionalism Jones, E. (2022), ‘Posthuman Feminism and Global Constitutionalism: Environmental Reflections’, Global Constitutionalism, 1–15. Kapur, R. (2002), ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’, Harvard Human Rights Journal, 15, 1–13. Kapur, R. (2021), ‘On Violence, Revolution and the Self’, Postcolonial Studies, 24 (2), 251–69. Kapur, R. (2022), ‘“The First Feminist War in all of History”: Epistemic Shifts and Relinquishing the Mission to Rescue the “Other Woman”’, American Journal of International Law: Unbound, 116, 270–74. Karpin, I. and K. O’Connell (2005), ‘Speaking into a Silence: Embedded Constitutionalism, the Australian Constitution and the Rights of Women’, in B. Baines and R. Rubio-Marín (eds), The Gender of Constitutional Jurisprudence, Cambridge: Cambridge University Press, pp. 22–47. Klabbers, J. (2019), ‘International Constitutionalism’, in R. Masterman and R. Schütze (eds), The Cambridge Companion to Comparative Constitutional Law, Cambridge: Cambridge University Press, pp. 498–520. Knop, K. (2004), ‘Introduction’, in K. Knop (ed.), Gender and Human Rights, Oxford: Oxford University Press, pp. 1–12. Kotzur, M. (2012), ‘Overcoming Dichotomies: A Functional Approach to the Constitutional Paradigm in Public International Law’, Goettingen Journal of International Law, 4 (2), 585–97. Krivenko, E.Y. (2009), ‘Feminism, Modern Philosophy and the Future of Legitimacy of International Constitutionalism’, International Community Law Review, 11 (2), 219–45. Kumar, V. (2017), ‘Towards a Constitutionalism of the Wretched: Global Constitutionalism, International Law and the Global South’, Völkerrechtsblog, 27 July 2017, accessed 12 September 2022, https://​ voelkerrechtsblog​.org/​towards​-a​-constitutionalism​-of​-the​-wretched/​. Labenski, S. (2022), ‘“The world is not organised for peace”: Feminist Manifestos and the Making of International Law’, Global Constitutionalism, 1–31. Lyon, J. (1999), Manifestoes: Provocations of the Modern, Ithaca, NY: Cornell University Press. Mac Amhlaigh, C. (2016), ‘Harmonizing Global Constitutionalism’, Global Constitutionalism, 5 (2), 173–206. MacKinnon, C.A. (2012), ‘Gender in Constitutions’, in M. Rosenfeld and A. Sajó (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 397–416. Melzer, P. (2006), Alien Constructions: Science Fiction and Feminist Thought, Texas: University of Texas Press. Munro, V. (2007), Law and Politics at the Perimeter: Re-evaluating Key Debates in Feminist Theory, Oxford: Hart. Murray, C. and C. Wittke (2017), ‘International Institutions, Constitution-making and Gender’, in H. Irving (ed.), Constitutions and Gender, Cheltenham, UK and Northampton, MA: Edward Elgar, pp. 107–32. Natarajan, U. (2011), ‘Creating and Recreating Iraq: Legacies of the Mandate System in Contemporary Understandings of Third World Sovereignty’, Leiden Journal of International Law, 24, 799–822. Nash, J.C. (2018), Black Feminism Reimagined: After Intersectionality, Durham, NC: Duke University Press. Nesiah, V. (2011), ‘Priorities of Feminist Legal Research: A Sketch, a Draft Agenda, a Hint of an Outline…’, feminists@​law, 1 (1), 1–4. O’Donoghue, A. (2013a), ‘Book Review: Feminist Constitutionalism: Global Perspectives by Beverley Baines, Daphne Barak-Erez and Tsvi Kahana’, The Irish Jurist, 49, 235–7. O’Donoghue, A. (2013b), ‘International Constitutionalism and the State: A Rejoinder to Vlad Perju’, International Journal of Constitutional Law, 11 (4), 1052–5. O’Donoghue, A. (2014), Constitutionalism in Global Constitutionalisation, Cambridge: Cambridge University Press. O’Donoghue, A. and R. Houghton (2018), ‘A Manifesto for Feminist Global Constitutionalist Order’, Critical Legal Thinking, 1 August 2018, accessed 11 September 2022 at https://​c​riticalleg​althinking​ .com/​2018/​08/​01/​a​-manifesto​-for​-feminist​-global​-constitutionalist​-order/​. O’Donoghue, A. and R. Houghton (2019), ‘Can Global Constitutionalisation be Feminist?’, in S. Harris Rimmer and K. Ogg (eds), Research Handbook on Feminist Engagement with International Law, Cheltenham, UK and Northampton, MA: Edward Elgar, pp. 81–102.

Feminist approaches to global constitutionalism  205 O’Rourke, C. and A. Swaine (2018), ‘WPS and CEDAW, Optional Protocol, and General Recommendations’, in S.E. Davies and J. True (eds), The Oxford Handbook of Women, Peace, and Security, Oxford: Oxford University Press, pp. 669–79. Oklopcic, Z. (2016), ‘The South of Western Constitutionalism: A Map Ahead of a Journey’, Third World Quarterly, 37 (11), 2080–97. Orford, A. (2002), ‘Feminism, Imperialism and the Mission of International Law’, Nordic Journal of International Law, 71, 275–96. Otomo, Y. (2014), ‘Her Proper Name: A Revisionist Account of International Law’, London Review of International Law, 2 (1), 149–54. Otto, D. (2006), ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights Law’, in A. Orford (ed.), International Law and Its Others, Cambridge: Cambridge University Press, pp. 318–56. Otto, D. (2015), ‘Queering Gender [Identity] in International Law’, Nordic Journal of Human Rights, 33 (4), 299–318. Otto, D. (2017), ‘Beyond Legal Justice: Some Personal Reflections on People’s Tribunals, Listening and Responsibility’, London Review of International Law, 5 (2), 225–49. Otto, D. and A. Grear (2018), ‘International Law, Social Change and Resistance: A Conversation between Professor Anna Grear and Dianne Otto’, Feminist Legal Studies, 26 (3), 351–63. Owens, P., and K. Rietzler (2021), ‘Introduction: Toward a History of Women’s International Thought’, in P. Owens and K. Rietzler (eds), Women’s International Thought: A New History, Cambridge: Cambridge University Press, pp. 1–26. Peters, A. (2009), ‘The Merits of Global Constitutionalism’, Indiana Journal of Global Legal Studies, 16 (2), 397–411. Peters, A, and K. Armingeon (2009), ‘Introduction: Global Constitutionalism from an Interdisciplinary Perspective’, Indiana Journal of Global Legal Studies, 16 (2), 385–95. Rimmer S.H. and K. Ogg (eds) (2019), Research Handbook on Feminist Engagement with International Law, Cheltenham, UK and Northampton, MA: Edward Elgar. Rousseau, S. (2011), ‘Indigenous and Feminist Movements at the Constituent Assembly in Bolivia. Locating the Representation of Indigenous Women’, Latin American Research Review, 46 (2), 5–28. Rubinelli, L. (2020), Constituent Power: A History, Cambridge: Cambridge University Press. Rubio-Marín, R. (2020), ‘Women and Participatory Constitutionalism’, International Journal of Constitutional Law, 18 (1), 233–59. Rubio-Marín, R. (2022), Global Gender Constitutionalism and Women's Citizenship: A Struggle for Transformative Inclusion, Cambridge: Cambridge University Press. Rubio-Marín, R. and H. Irving (2019), ‘Women as Constitution-Makers: The Promises and the Challenges of Participation’, in R. Rubio-Marín and H. Irving (eds), Women as Constitution-Makers: Case Studies from the New Democratic Era, Cambridge: Cambridge University Press, pp. 1–30. Rubio-Marín, R. and M.I. Morgan (2004), ‘Constitutional Domestication of International Gender Norms: Categorizations, Illustrations, and Reflections from the Nearside of the Bridge’, in K. Knop (ed.), Gender and Human Rights, Oxford: Oxford University Press, pp. 113–52. Sapiano J. and B. Baines (2019), ‘Feminist Curiosity about International Constitutional Law and Global Constitutionalism’, Journal of the Oxford Centre for Socio-Legal Studies, 1, 1–21. Saunders, C. (2009), ‘Towards a Global Constitutional Gene Pool’, National Taiwan University Law Review, 4 (3), 1–38. Schwöbel-Patel, C. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Martinus Nijhoff. Schwöbel-Patel, C. (2012), ‘The Appeal of the Project of Global Constitutionalism to Public International Lawyers’, German Law Journal, 13 (1), 1–22 Sellers, P.V. (2022), ‘Jus Cogens: Redux’, American Journal of International Law: Unbound, 116, 281–86. Shaw, J. (2000), ‘Importing Gender: The Challenge of Feminism and the Analysis of the EU Legal Order’, Journal of European Public Policy, 7 (3), 406–31. Shiner, A. (2019), ‘The Ideologies of Global Constitutionalism’, Global Constitutionalism, 8 (1), 12–28. Spivak, G.C. (1988), ‘Can the Subaltern Speak?’, in C. Nelson and L. Grossberg (eds), Marxism and the Interpretation of Culture, Urbana: University of Illinois Press, pp. 3–34.

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PART III LEGAL THEORIES

15. Natural law at the foundation of global constitutionalism Mary Ellen O’Connell

By the mid-1980s, academic legal theorists working in the Western tradition generally identified two primary categories of law within states, positive law and constitutional law. They identified one category of law at the international level, positive law. This Handbook is an inquiry into whether there is more than positive law at the international level – it asks whether constitutionalism exists in some ways comparable to the constitutionalism of states (Lang and Wiener, Chapter 1 in this Handbook). This chapter adds another inquiry. It argues that in addition to positive law and constitutional law natural law also exists. Indeed, the chapter goes further by providing evidence that natural law is essential to the existence of both positive law and constitutional law. The Handbook editors took as their starting place the existence of a ‘global legal and political order’. They invited contributors to explore whether that order is becoming ‘more constitutional’. The assumption in their question is that no constitution currently exists at the supra-national level. The assumption reflects a consensus in the Handbook on what a constitution is and the factors of law and politics have given rise to national constitutions. The authors generally agree that the current global legal and political order incorporates constitutionalist principles but not a constitution per se. This chapter builds on the consensus. It helps identify uniquely constitutionalist legal principles as rules of positive law subject to heightened requirements for modification or change. Durable, enduring, and nonderogable principles, such as the prohibition on the use of force or the prohibition on genocide may be categorized as ‘constitutionalist’, but they are not uniquely constitutional. They are also natural law principles. The editors opened the first edition with a basic description of what a constitution or constitutionalism can accomplish: Constraint on political decision-making (Lang and Wiener Chapter 1 in this Handbook). Of course, all of law does this, whether characterized as constitutional or not. We know from anthropological and legal historical studies that before the emergence of law, human action was ordered through kinship ties and other such social norms, religious belief, and physical force. Constitutionalism is a late development within the story of law. Following its first emergence, the first systematic thinking about law led to the theory of natural law. Natural law includes an explanation of positive law, as well as the basis for international law. During the time period when theorists were advancing positive law to the exclusion of natural law, the need for some restrictions on positive law was perceived to, in effect, replace natural law. Constitutional law was introduced as a check on positive law-making. Yet, the deficits of constitutional law in the role of normative authority over positive law is increasingly understood today. Scholars working on issues of both domestic

208

Natural law at the foundation of global constitutionalism  209 and international law are returning to a comprehensive understanding of law, which includes positive, constitutional, and natural law.1 This chapter takes the discussion further by showing that, while constitutional legal and political theory may help identify principles properly classified as ‘constitutionalist’, natural law theory is needed to determine which of these principles are nonderogable and which may be altered through positive law mechanisms. Natural law theory alone can explain why some principles are inherent in the very concept of law and endure so long as a legal system endures. Natural law premises and principles form the foundation upon which constitutional and positive law are built. The chapter begins with an introduction to law and natural law and indicates how natural law concepts gave rise to modern international law. As international law emerged, theories of political realism and legal positivism emerged as well, challenging the very concept of natural law. The second section shows, however, that natural law is critical to the existence of law – both to the law’s underlying premises and to its higher norms. The final section distinguishes the natural law principles and premises connected with international law from international law’s positivist aspects, including its constitutionalist features. While not essential to law in the way natural law and positive law are, constitutionalism nevertheless plays an important role in distinguishing among positive law rules. Some positive law is easily modifiable. Constitutional principles are more difficult to change but need not necessarily endure in the way natural law premises and principles must.

NATURAL LAW, POSITIVE LAW, AND INTERNATIONAL LAW Constitutional law is the most recent of the fundamental legal categories to develop in human societies. Basic notions of law emerged first, then followed by increasingly sophisticated theories of law, beginning with natural law theory which included an explanation of positive law. Complex factors in Europe – including the rise of science, the rise of Protestantism, and the rise of the modern state, led to the decline of natural law. In its place, legal and political theorists looked to positive law and constitutions. Natural law, however, had preceded and formed the basic legal concepts underlying these later developments. While some theorists continued to acknowledge the need for natural law theory, others rejected it, sometimes vehemently. Opponents nevertheless took for granted many assumptions traceable only to natural law theory, not positivism or constitutionalism. This section provides a basic definition of law and briefly explains the evolution of natural law teaching to indicate that all notions of law in the West today depend on natural law.

1 Some theorists never abandoned natural law. See, e.g., Finnis (1980). They are being joined by an ever-larger contingent. ‘The continuing interest in natural law concepts [has] now renewed once more …’ Kalmbach (2017); Crowe and Lee (2019) pp. 13–30; O’Connell (2019). Growing interest in the 2020s in connection with United States constitutional law is noteworthy. Harvard law professor, Adrian ‘Vermeule advocates recovery of the natural law tradition that undergirded Western law for over two millennia and provided the basis for American law from before the founding of the country until it was unceremoniously discarded in the mid-twentieth century’ Tamanaha (2022), commenting on Vermeule (2022).

210  Handbook on global constitutionalism A

Early Law and Natural Law

Law emerged in human communities for providing order within and between communities. Order means predictable conduct, which is the condition necessary for planning, organization, and peaceful, non-conflictual relations. Anthropological evidence supports the conclusion that families, physical force, and religious belief were the first ordering mechanisms and followed by law. Law evolved as an alternative to physical force and religion while incorporating aspects of both in the interest of attaining peace. Like religion, law is a ‘complex, intricate aspect of human culture’ but, like religion, it is also a ‘normative social practice’ for guiding human behavior, giving rise ‘to reasons for action’ (Marmor and Sarch 2019). As a means of providing social order, law is uniquely premised on the concept of equality. The other ordering mechanisms are premised on physical power or socially constructed hierarchical status. Ancient Greek philosophy began the systematic examination of phenomenon of law, in the context of thinking about the good life of individuals and of society. By the 4th century BCE, the Greek philosophers, Plato, Aristotle, and, most importantly, their successors known as the Stoics produced a theory of natural law (Duke 2019; Tasioulas and Verdirame 2022). ‘The Stoics originated the idea of natural law as such by explicitly bringing together the notions of “law” (nomos) and “nature” (physis) …’ (Taitslin 2019, p. 31). The Stoics taught that through observing and reasoning about the natural world, the regular patterns and orderly arrangements of the natural law offered insights into how human communities should be organized. The law of nature could be translated into rules for harmonious life in community. They further concluded that as order in nature was pervasive, law for the creation of an orderly society must be universally applicable (Taitslin 2019, p. 32). The natural, orderly world was a creation of the divine. Patterning social life on natural order supported human flourishing. The Stoics also observed that all human beings share the capacity to reason. From this they were able to develop a ‘radically cosmopolitan, universalist’ vision of law (Neff 2014, pp. 59–60). The Roman philosopher and jurist Cicero drew on the Stoics and other philosophical schools in the first and second centuries BCE (Horsley 1978, n. 14; pp. 42–50). He refined the element of transcendence found in Stoic thought.2 Not only did nature give insight to divine intention or transcendent knowledge, one could reflect on divine meaning as a distinctive aspect of reasoning about the world while also reflecting directly on nature. Cicero taught that contemplation of the divine – in or apart from nature – inspires understanding of the norms that should be observed as legal norms. He, like Aristotle and the Stoics before him, understood the aims of law are the realization of peace and justice. Cicero further explained natural law by contrasting it with positive law. Positive law is made through consent-based procedures, such as the process of parliamentary legislation and treaty-making, as well as designated material acts, including the practice of states in the formation of customary international law rules (Green and Adams 2019). Cicero identified two categories of positive law in his day, the jus civile applicable to Romans and the jus gentium applicable to the many disparate communities of non-Romans who fell under Roman control. Both were a mix of conventional and customary law. The jus gentium, like natural law, applied universally, the jus civile did not. All positive law, regardless of category, had to comply with ‘Transcendence’ refers to ‘[e]xistence or experience beyond the normal or physical level.’ Oxford Dictionaries, accessed 21 June 2016, https://​www​.oxforddictionaries​.com/​us/​definition/​english/​ transcendence. 2

Natural law at the foundation of global constitutionalism  211 the normative standards of natural law to be valid. Thus, for Cicero, there could be no positive right to resort to war in conflict with the natural law norm of peace. War could be justified only in the interest of establishing peace. The natural law of the ancient era was blended with Christian and other religious teaching during the Middle Ages. The most famous synthesizer was St. Thomas Aquinas, known as the ‘paradigmatic’ natural law theorist (Duke 2019). His approach is still known as ‘classical natural law’ (Doomen 2011, p. 882) While technically expanding Cicero’s two major categories of law, natural and positive, to four, adding eternal law and divine law. Because eternal law is known to God alone and divine law was incorporated in Cicero’s term ‘natural law’, the two-part division into natural and positive law remained important. However, the distinction of Aquinas’s contribution from later approaches to natural law remained in his emphasis on divine law as separate from what is learned by reasoning about the natural world. Divine law in contrast to eternal law is revealed to humanity through sacred texts and other forms of revelation.3 This method led to the most important normative precepts of law, including the conclusions that law is a public good, that legal duties must be fulfilled in good faith, and that the application of law must be fair and achieve justice, meaning that like cases are treated alike. B

Political Realism and Legal Positivism

The emergence of scientific method, which relies on material evidence to support propositions, together with other factors, resulted in a shift in legal and political theory away from transcendent sources to reasoning on the basis of observing nature alone. The concept of ‘nominalism’ began to throw doubt on the existence of objects or concepts without physical reality. The shift coincided with the Reformation and resulting religious divisions in Europe (Berman 1983, p. 25). The authority of the Church as an arbiter of the natural law eroded and ‘gradually elements of divine revelation were replaced by reference to reason or the “nature” of things’ – a division developed between ‘Naturrecht’ [natural law] and ‘Vernuftrecht’ [law of reason] (Walter forthcoming). In English the term ‘natural law’ continued to be used for both branches, accounting for some of the present day confusion over what exactly ‘natural law’ means. ‘[J]urists’ reluctance to ground natural law in divine edicts led to a collapse of natural law legislated by God into positive law by the eighteenth century’ (Daston and Stolleis 2008, p. 10). The founder of modern international law, Hugo Grotius, was part of this development to some extent for the instrumental reason of moving past theological differences between Protestants and Catholics, which had ignited the brutal wars of religion in Europe. He famously wrote in the Prolegomena of his seminal work, The Law of War and Peace, that the book reflected what the law would be even if there were no God. Otherwise, the book is faithful to Aquinas and Aquinas’ principal successors, the Scholastics, and among them, Francisco Suarez (Grotius 1995; Neff 2014; Capps 2020; Berman 1983). Grotius also followed Aquinas and Suarez in finding as part of natural law, positive law rules, including the Roman jus gentium. He taught that the jus gentium was needed for its detail and that it should be interpreted in the light of natural law. Grotius’s efforts led to the first ‘detailed body of specific rules’ for the governing of international relations (Neff 2014, p. 141).

3



These terms have to an extent added to the confusion over what natural law is.

212  Handbook on global constitutionalism Grotius’ British contemporary, the political philosopher Thomas Hobbes, in line with another, earlier political theorist, Machiavelli, presented a major challenge to the very possibility of law over sovereigns. As a Protestant, Hobbes rejected any claim by the Church to exercise legal authority over sovereigns as a normative matter. In addition, owing to his experience in the English Civil War, Hobbes strove, above all, for the institution of a strong government to ensure order within the state through physical force and other forms of coercion. For Hobbes, without the coercive power of a single governmental authority, both law and morality were limited in how they could keep peace among states. National leaders have a duty to defend their internal orders against the inevitable violence and aggression exercised by states against each other in the ungoverned space beyond states. Along with Machiavelli, Hobbes is linked to the ideas that launched the contemporary political science theory of realism. Realism relies on a dark assessment of human nature – that people are ultimate selfish and anti-social so that ‘the basis of political obligation is interest pure and simple’ (Lauterpacht 1946, pp. 24–5). This assessment led Hobbes not only to construct a blueprint for order within states that required centralized governmental control, he shifted decisively away from law as divine command to law as the product of sovereign command (Boyle 1987, pp. 383, 391; Dyzenhaus 1992). John Locke, the highly influential English political commentator, adopted key points from Hobbes. Locke’s work, in turn, is reflected in the thinking of the founders of the United States. Locke took from Hobbes a focus on the positive law of states coercively enforced by strong central government. He distinguished himself in his Two Treatises of Government by also arguing for some legal restraint on governments but did not look to the existing alternative of international law for this purpose. Instead, Locke devised a legal fiction of a ‘social contract’ in which the people gave up some rights they enjoyed in the ‘state of nature’ to governments in exchange for legal limits on government power. ‘[P]eople in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments’ (Tuck 1999). For Locke, violent revolution is justified against tyrannical governments. In this, he parted company decisively from Hobbes, who abhorred the idea of civil war. Hobbes had promoted the sovereign authority of governments to maintain order, in particular, by preventing civil war. Still, Hobbes’ views that Locke shared on sovereign authority is also evident in the writing of the leading international law scholar to succeed Grotius, Emerich de Vattel. Vattel’s major work, The Law of Nations, appeared in 1758. Vattel cites Grotius and invokes natural law, yet his ideas are a major departure from the natural law of Aquinas. Vattel reconceives natural law as solely science-based. It results from individual reasoning on the lessons of nature for the institution of law. For Vattel it is the person of the sovereign who applies his reason and conscience to discern lessons for law. As a sovereign, he is the equal of other sovereigns, meaning no one can sit in judgment of the decisions of the other. There is no law superior to individual sovereigns. This means that treaties are the principal form of international law – they are positive law as the law made by sovereigns (Allott 2002, pp. 56–62). Vattel’s efforts to promote national sovereign authority created a challenge for nineteenth-century international lawyers. Vattel’s concept of sovereignty combined with the rising interest in constitutional law theory among legal and political theorists. The British legal theorist and follower of Hobbes, John Austin, famously defined law in 1832 as the command of a sovereign backed by a sanction, and stated that international law was not law

Natural law at the foundation of global constitutionalism  213 because its rules do not emanate from a single sovereign in a position to coerce obedience. What some saw as international law was for him merely a system of positive morality (Austin 2009, pp. 141–2). International legal theorists faced a dilemma. They did not wish to appear unscientific by clinging to classical natural law, nor did some of them wish to limit their own sovereign’s power through a natural law concept that placed ultimate normativity beyond sovereign prerogatives. Freedom to use military force unrestrained by natural law restrictions was proving critical to the violent establishment of European overseas empires. However, Austin was correct to the extent that international law cannot qualify as law without an explanation as to why it binds sovereigns. Two German theorists rose to prominence for their attempts to preserve both international law and absolute sovereignty. Georg Jellinek argued that a ‘sovereign state, through entering into a legal relation with another state, subjected itself to international law by an act of “self-limitation”…’ (Nussbaum 1954, pp. 234–5; Kleinschmidt 2015, p. 376). He admitted, however, that the sovereign state could end its ‘auto-limitation’ at any time. In 1899, Heinrich Treipel introduced a concept of the ‘common will’, arguing that coming together to express a commitment in law could limit state discretion to ignore the duty to obey. The ‘common will’ did not seem to be the product of positive law, however, leaving only natural law theory to explain how such a community-wide commitment could overcome individual sovereign prerogative (Nussbaum 1954, pp. 234–5). Perhaps because it had links to the older natural law tradition, the common will idea was not easily dismissed. Common will, together with Immanuel Kant’s proposition in 1795 of a world federation to prevent war, helped lead to the establishment of the first major inter-governmental organization, the League of Nations. The League and Permanent Court of International Justice (PCIJ), established by League members in 1920, reflected the continuing competition between classical natural law theory and positivism alone in explaining international law. The League Covenant was established for the more effective development and implementation of such natural law norms as the prohibition on the use of force, the peaceful settlement of disputes, the promotion of economic prosperity, and the realization of self-determination. It was, however, a positive law instrument, reflecting Hobbesian views in that its provisions could be enforced through sanctions and armed force. Any member could simply end their membership, as did Germany, Japan, and Italy. The Statute of the PCIJ expressly drew on both classical natural law and positive law. Judge Kōtarō Tanaka confirmed this in a dissenting opinion in 1966: [I]t is undeniable that in Article 38, paragraph 1(c), some natural law elements are inherent. It extends the concept of the source of international law beyond the limit of legal positivism according to which, the States being bound only by their own will, international law is nothing but the law of the consent and auto-limitation of the State. But this viewpoint, we believe, was clearly overruled by Article 38, paragraph 1(c), by the fact that this provision does not require the consent of States as a condition of the recognition of the general principles. States which do not recognize this principle or even deny its validity are nevertheless subject to its rule … The final draft, namely Article 38, paragraph 1(c), is the product of a compromise between two schools, naturalist and positivist … (ICJ, South West Africa Cases (Ethiopia v. South Africa)(Liberia v. South Africa), Judgment of 18 July 1966, Dissenting opinion, Judge Tanaka, 1966 ICJ Reports, 285–315).

Despite the reliance on both natural and positive law in the PCIJ Statute and the success of the court, the remainder of the twentieth century was increasingly focused on constitutional law within states. Interest was fading as to whether constitutions, international organization con-

214  Handbook on global constitutionalism stituent instruments, or other forms positive law made any sense without natural law theory. One of the leading twentieth century legal theorists, Hans Kelsen, attempted to replace natural law and the inadequate state will theory of positive law (Fillafer and Feichtinger 2019, pp. 434, 437.) He argued that all law is made binding by the wide social acceptance of pacta sunt servanda – consent to legal agreements binds. This social acceptance is the Grundnorm, which Kelsen also described as belief in the binding force of customary law (Nussbaum 1954). Rules and principles that can be linked to the Grundnorm impose obligations and are legitimately subject to coercive enforcement (Kelsen 1992, p. 52). Kelsen sought to base the Grundnorm and all other aspects of law on positivism alone. He was an adamant critic of natural law owing to his commitment to science and liberal, constitution-based democratic governance. He was the author of Austria’s post-imperial constitution and argued that the concept of absolute and enduring law conflicts with the sovereign authority of the people to change any law and the course of scientific discovery that could lead to new insights incompatible with unchanging norms. Kelsen also argued that natural law method left too much to subjective conclusions (Fillafer and Feichtinger 2019, p. 436). These positions are largely reflected in the most influential Anglo-American theory of general law in the twentieth century, H.L.A. Hart’s Concept of Law. Hart, too, based legal validity on social acceptance. Unlike Kelsen, however, Hart understood the internal contradiction of arguing that all law is subject to change under the theory of positivism. That would include consent itself, without which there is no positive law. Hart also saw the need for a source of normativity for law outside the consent-based provisions of positivism. He was a post-World War II scholar, who, like all Europeans of his generation, well understood that Fascists had acted lawfully under positive law, even with respect to their most debased actions. Hart recognized the need for ‘a minimum content of Natural Law’ (Hart 1961, p. 189 emphasis added; Doomen 2011, p. 882; Lachenmann 2011, para. 27). Yet, Hart’s scholarship reflects little more than this basic requirement that law be founded on and reflect enduring moral norms. He did not grapple with how to identify such norms in a secular age. Hart’s contemporary and student of Kelsen, Alfred Verdross, took up the challenge of adapting classical natural law in response to Kelsen’s critique, in particular, with respect to subjectivity. Through the early 1980s, Verdross pointed out that positivism depends on individual interpretation cut off from standards beyond the self. In this respect, it is positivism that suffers from subjectivism. Nevertheless, Verdross saw the need for a secular source of transcendent knowledge to substitute for divine revelation. He proposed deriving natural law principles by deduction from widely held rules of positive international law (Verdross and Koeck 1983, p. 18). With little credit to Verdross, this has become the preferred approach to identifying jus cogens. Since the 2000s, members of the United Nations International Law Commission have described jus cogens as a form of ‘special’ customary international law. The approach starts with a customary international law rule, then cites the type of evidence used in establishing rules of custom to argue the rule under consideration is distinct from typical customary rules. The ILC reports make clear that this is a positivist method, unrelated to natural law. The result, however, is a method that leads to constitutional principles, not peremptory norms, as will be discussed. Peremptory norms require something more than positivist consent. They require a link to an extra-positive source, in other words, natural law and authentic natural law incorporates transcendent knowledge (Porter 2004). John Finnis and other ‘New Naturalists’ have tried to reduce natural law to individual reasoning from nature without transcendence. Their results

Natural law at the foundation of global constitutionalism  215 have been criticized as reflecting subjective, often conservative views (Crowe 2019, pp. 4–9). Verdross seems not to have either openly embraced transcendence or to have rejected it. By the late twentieth century, however, it was clear to several leading international law scholars that the field could not respond adequately to contemporary challenges without a forthright embrace of classical natural law incorporating secular sources of transcendent knowledge. Judges Christopher Weeramantry and Cançado-Trindade of the International Court of Justice (ICJ) looked not simply to widely held, common legal principles held around the world but to the normative teaching of all cultures (Weeramantry 2004; Cançado-Trindade 2013). Aesthetic philosophy leads to the same principles. It is a secular philosophy that through the study of beauty finds universal, objective support for the traditional theologically based conclusions of natural law (Follesdal 2022; O’Connell 2019).

INTERNATIONAL LAW AND NATURAL LAW PREMISES AND PRINCIPLES The discussion above both explained what natural law is and the role it has played in the establishment of all legal systems, whether national, regional, or international law. This section will focus in on how natural law continues to account for the basic premises or constitutive concepts of international law. Natural law also remains the sources of certain essential substantive principles, as well as the nature of certain substantive principles. This section presents both of these major contributions of natural law theory, first to the premises of international law and, second, as a source of jus cogens norms and general principles. The discussion here sets the stage for the final section where the differences in how natural law contributes to the international legal system are contrasted with the contributions of constitutionalism. Natural law provides a method for explaining basic premises about international law as a distinctive institution. Natural law is also the source of, as well as the principles found in, the extra-positive sources categorized as jus cogens or ‘peremptory norms’, and the general principles of law – the third primary source of international law as set out in Article 38 of the Statute of the International Court of Justice (ICJ Statute). A

Pacta Sunt Servanda

The most basic premise of all law is pacta sunt servanda, agreements are binding. In other words, certain types of promises or consent lead to binding legal duties. Without the principle of pacta sunt servanda there would be no law. Why a promise or consent has the power to bind depends on an explanation external to Natural law, therefore, accounts for the essential fact about law – it creates duties of compliance (Fitzmaurice 1959, p. 195; Kleinschmidt 2015, p. 371; Van Ittersum 2017, p. 56). Natural law theory also leads to the premises that international law is universal law and that peremptory norms or jus cogens and general principles are nonderogable. This means natural law norms and principles are superior to positive law and in the case of conflict supersede positive law rules.

216  Handbook on global constitutionalism B

Jus Cogens

The substantive jus cogens consist of the prohibitions on aggression, torture, slavery, genocide, apartheid, prolonged arbitrary detention, and certain war crimes. These are all fundamentally moral principles in contrast to general principle, which support in abstract way fairness in a legal system through principles such as equality and proportionality. Like jus cogens there can be no derogation from such inherent general principles, discussed in more detail below. Jus cogens norms are distinctive in that they prohibit specific forms of conduct. As such they are directly moral norms that supersede immoral positive law. General principles are discussed in the next section. In 1970, the ICJ made an indirect reference to jus cogens by listing norms that are erga omnes, compliance with which is owed to the international community as a whole, not just one or a few states that have suffered a specific injury. The list included norms commonly classified today as jus cogens: [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. … Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination (Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5))

Thus, the ICJ not only described a special category of norms, it provided a list that has achieved consensus as unquestionably jus cogens norms. The court also explained an important procedural aspect of jus cogens. All states have an interest in seeing these norms respected. Jus cogens norms are obligations owed to all. They are also nonderogable and may not be superseded by positive law. C

General Principles

Legal principles of equality, fairness, good faith, necessity, and proportionality are all general principles of law. They are inherent in legal systems and may not be eliminated through adopting positive law. They are, therefore, explained only by natural law. These aspects of the law exist regardless of state will or the consent of the governed. These extra-positive aspects are best explained using the classic natural law method, which incorporates reason, observation of nature, and openness to transcendence. Duties such as good faith performance of legal obligations are general principles derived from natural law but the more technical aspects of procedure, such as the jurisdiction of courts to enforce particular rules, are not. They are positive law. Positive law procedural rules do not have the nonderogable quality of natural law norms; they are subject to change through positive law method. For example, the jus cogens norm against slavery is absolute, but whether, how, and where a particular slaveholder is prosecuted are positive law questions. The principle that a treaty between two states may not change the rights of a third state is a classic general principle of natural law in the same category as good faith and equality.

Natural law at the foundation of global constitutionalism  217 These general principles tend to be abstract, taking form from facts in contrast to the specific substantive content of jus cogens. Like jus cogens, general principles may not be overridden by treaties or customary rules and are, therefore, explained by natural law, but they are not so much ‘higher’ norms as foundational norms. International law could not be law without them. Still, they lack the moral quality characteristic of jus cogens. The International Law Commission’s Third Report on General Principles of Law identifies general principles that are inherent to what makes international law a legal system. The Report explains that they ‘perform a systemic function’ and are formed within the system separately from the positive law rules of treaties and customary international law. In this chapter, the understanding is that inherent general principles are ‘discerned’ rather than ‘formed’. In other words, a natural law versus a positive law method is employed. The most important aspect of general principles is summed up in the Report in these terms: General principles are not subject to change through the mere consent of states or other subjects of the law. Inherent general principles play a ‘systematic function’, which means they provide the normative conditions that ensure international legal processes meet the standard of legality. The performance of treaties, for example, must be carried out in good faith. ‘The principle of good faith is … relied on as the common guiding beacon that will orient the understanding and interpretation of obligations …’ (ILC, Third Report on General Principles, July 2022, p. 23, citing, Sempra Energy International v Argentine Republic, ICSID Case No. ARB/02/16, Award, 28 September 2007, International Centre for Settlement of Investment Disputes, para. 298). Good faith, which is ‘at once a general principle of law and a general principle of international law, controls the exercise of rights by States’ (ILC, Third Report on General Principles, pp. 44–45, citing United States – Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, 6 November 1998 (WT/DS58/AB/R), Dispute Settlement Reports 1998, vol. VII, p. 2755, at para. 158). One of the most common legal procedures is the interpretation of texts. In international law this means first and foremost treaties but extends to other legally relevant documents from United Nations General Assembly resolutions to decisions of courts and tribunals. Legal interpretation relies on the application of general principles. ‘Reference to general rules of international law in the course of interpreting a treaty is an everyday, often unconscious part of the interpretation process’ (ILC Report of the Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International, UN Doc. A/CN.4/L.682 (13 April 2006) (hereinafter ‘Report’)). General principles supply ‘procedural standards’. The enforcement procedures of international law from the application of countermeasures to the use of armed force are regulated by general principles as much as the interpretation of texts. The general principles of necessity, proportionality and attribution are essential components of the law on both countermeasures and resort to force. Judith Gardam and Bin Cheng classify necessity and proportionality as general principles, despite the ICJ’s reference to them as rules of customary international law in the Nuclear Weapons case (Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 245; Gardam 2004, pp. 4–5; Cheng 1953, pp. 70–7). Law would lose its character of legality without these principles. They are nonderogable and, so, do not fit positive law because they are not changeable through the sort of positive action that may result in new treaties or rules of customary international law. The ICJ rarely discusses them in any detail, but knowing what to look for quickly leads to references in judicial decisions. They are simply not identified expressly as ‘general principles’. Judges constantly

218  Handbook on global constitutionalism look to standards such as good faith, reasonableness, effectiveness, necessity, proportionality, attribution, abuse of rights, and equality. They cannot be overridden by contrary agreement or the formation of new rules of custom. This unchanging feature of inherent general principles is similar to a key feature of jus cogens and may account for why some scholars classify certain general principles as jus cogens norms. General principles and jus cogens clearly have aspects in common, but it is the position here that the more persuasive view is to include only ethical or moral norms among the jus cogens norms. Inherent, structural, or other norms integral to the system of international law as a legal system belong more appropriately in the general principles category. These principles may not be overridden by treaties or customary rules and are explained by natural law, but they are not so much ‘higher’ norms as foundational norms. This section has discussed premises and principles of international law that depend on natural law theory. A key point is that natural law elements are distinguishable from all positive law aspects. Some natural law aspects are included as examples of constitutionalist principles. This is reasonable so long as other types of constitutionalist principles that rely on positive law method are distinguished. The two categories of law under the single label ‘constitutionalism’ is the final topic. The next section continues the discussion considering two categories of positive law rules and natural law.

NATURAL LAW AND GLOBAL CONSTITUTIONALISM In the late twentieth century, scholars began to explore the proposition that a constitution or principles of constitutionalism exist or should exist at the international level. Consideration of these questions has produced a sizable literature in legal and political theory, much of it reflected in the pages of this Handbook. The scholarship has resulted in a broad consensus on at least two points: No constitution exists at the global level that is comparable to the model constitutions of the United States and France. These constitutions feature ‘specific procedural and substantive limits that reflect liberal political values, including democracy, separation of powers, human rights and judicial review’ (Bodansky 2011, p. 373).4 Nevertheless, there is also broad acceptance respecting the existence of a ‘body of law that sets forth the fundamental (that is, superior and more difficult to change) rules’ of the international community (Bodansky 2011, p. 373). The ILC’s report on Fragmentation of International Law by the International Law Commission explains: Much of the concern over the fragmentation of international law emerges from the awareness of the ‘horizontal’ nature of the international legal system. The rules and principles of international law are not in a hierarchical relationship to each other. Nor are the different sources (treaty, custom, general principles of law) ranked in any general order of priority. This is the key difference between international law and domestic legal systems. Whereas domestic law is organized in a strictly hierarchical way, with the constitution regulating the operation of the system at the highest level, there is no such formal constitution in international law … (p. 166)



4

A few scholars, however, do find a constitution at the global level, see, Fassbender (2009).

Natural law at the foundation of global constitutionalism  219 The study accepts the international community holds ‘some considerations’ as ‘more important than others, and must be legally recognized as such’. It lists only two approaches to reasoning about relative hierarchy, ‘natural law’ and ‘political justice’. It takes no position on whether the international legal system is nevertheless in a process of ‘constitutionalizing’ (Report, p. 167). The editors of this book posit that a process of ‘constitutionalization’ is underway, moving from the minimum consensus on the existence of superior rules to the model of national constitutions. They argue that the process entails enhancement of law and institutions around four functions: the establishment of the rule of law; separation of powers; facilitation of constituent powers; and protection of rights. At either end of the continuum, minimalist to maximalist, constitutions, according to the editors, do two things: Enable and constrain political decision-making (Lang and Wiener, Chapter 1 in this Handbook; Klabbers, Peters, and Ulfstein 2009). These summary points from the global constitutionalism discussion are sufficient for the purposes of this chapter and this section, which aims at indicating the distinctive role of natural law with respect to constitutions and constitutionalism. Other chapters in the volume debate aspects of the editors’ views respecting global constitutionalism, including the empirical question as to whether the international community has a constitution or can be characterized as constitutionalized or constitutionalizing. All authors acknowledge that the world has international law, but they take various positions as to whether, in addition to international law, there is also the specialized form of law – constitutional law – that emerged originally for the express purpose of creating and limiting the powers of national governments. Because the international community has no government comparable to those of states, to the extent the world has a constitution or ever acquires one, it will be distinctive from the national models. Nevertheless, there are clearly principles of international law that fit the minimalist criteria of fundamental, superior, and difficult to change. The international legal system also includes explanations of how law enables and constrains political decision-making. This section considers examples that apply to each constitutionalist category, but also separates them between natural law and positive law. The first two sections have introduced natural law and the principles and premises that endure so long as law exists. These can be said to be ‘hard to change’, but, of course, they are more than that. They are impossible to change, so long as they are discerned as natural law. Other rules are difficult but not impossible to change and may, therefore, be constitutionalist. As changeable, however, they are explained by positive, not natural law theory. The discussion that follows is divided between the overlapping natural law premises and principles and the uniquely constitutionalist rules. A

Natural Law Constitutional Principles

Constitutions enable and constrain political decision-making, so does natural law. Natural law does far more than that, however. Natural law premises underlie all legal concepts. Natural law principles are superior to all non-natural law rules. Constitutions depend on natural law theory, but natural law is wholly independent of constitutionalism. The founders of the United States justified their effort to establish an independent, sovereign state on the basis of natural law concepts. They claimed in the Declaration of Independence the ‘separate and equal station to which the Laws of Nature’ entitled the British colonies from Maine to the Carolinas. Six years after the end of the War of Independence against Great Britain (1776–1783), many of the same men who wrote or signed the Declaration drafted a new

220  Handbook on global constitutionalism constitution. Government organs were already in place under the Article of Confederation, but they needed reform. The Constitution of 1789 both enabled and constrained the new government, as the editors of the Handbook explain constitutions are meant to do (Lang and Wiener, Chapter 1 in this Handbook). As the editors further detail, constitutions fulfill these two core purposes through ensuring the rule of law, providing for separation of powers, facilitating popular participation, and protecting human rights. The US Constitution and Bill of Rights arguably perform all four of these functions. They are products of positive law methodology in that they were adopted by the consent of representatives of the 13 former colonies. To ensure the rule of law and protection of rights, however, required that the Constitution rest on pre-existing natural law. Legal scholars adhering to ‘originalist’ interpretation of the Constitution seem to overlook the fact that natural law premises and principles long pre-date the US Constitution and made it possible. Originalists seeks to interpret the words of the Constitution exactly as the drafters intended because those words are considered the highest legal authority. The drafters, however, invoked natural law as the basis of validity for their own law-making actions. For them, natural law is superior to the Constitution they drafted. Natural law also establishes the premises on which all law depends – that law is a good, that it is binding, and that it must be consistent with moral norms. Constitutions are products of positive law-making. The terms are valid because of consent. The Founders accepted that if the Constitution conflicted with natural law, natural law must prevail. Natural law is in fact needed to supply the legal basis for constitutions, to enable political decision-making, and to identify the ultimate norms with which decision-makers must abide. Most tangibly, natural law substantive principles, invalidate contrary state action even if that action is consistent with the constitutions. To the extent constitutions contain principles mandating compliance, the source of the mandate is natural law theory, not constitutional law theory. The limits of legal rules are also established in natural law theory. If, for example, the international community were to adopt a constitution, it would have to include the prohibition on the use of force. As explained in the first section, the prohibition on force is inherent in the very concept of law. It is also the first moral norm incorporated in international law. The prohibition is an enduring, nonderogable norm. Bodansky refers to constitutions containing ‘superior’ norms, but the highest level norms, those that invalidate any other norm regardless of their adoption through positive law, or constitutional law if they conflict, are natural law jus cogens. Constitutions are not the highest law in ensuring the superiority of law over politics, natural law is. Natural law is also the source of all principles that are not subject to change through the positive law method. Some of these natural law principles are also categorized as constitutional. All of jus cogens are explained in natural law, as just mentioned with respect to the jus cogens prohibition on the use of force. The other jus cogens are discussed as human rights; in addition to being peremptory norms, these include the prohibitions on genocide, slavery, torture, disappearance, and apartheid. Samantha Besson, writing in this Handbook, argues these rights are part of global constitutional order. The bans on genocide and the other grave crimes are not just constitutional, they are mandated by natural law. So long as there is law, these prohibitions must be part of it. They meet Bodansky’s term ‘fundamental’ and, for him, therefore, found in constitutions. Perhaps of greater interest are the general principles of law. In contrast to jus cogens, general principles have not been subject to the extensive debates about their relation to natural

Natural law at the foundation of global constitutionalism  221 law or constitutions to date. Starting in 2019, the International Law Commission (ILC) took up the topic of general principles bringing new attention to the category. The ILC began by placing different types of general principles in positivist versus non-positivist categories. The evidence for the categorization is strong and should withstand the critique from ILC members who may see a larger role for states to influence the meaning of specific general principles if they are nothing more than positivist. Yet, general principles not subject to change through positive law method are not positivist. Equality, good faith, attribution, necessity, and proportionality are inherent in the very concept of law. They are essential to the rule of law. They do not change with state practice. Scholars who have considered general principles in depth agree that they are best explained in natural law theory. Like jus cogens, general principles may also be considered constitutionalist. Anne Peters examines the constitutionalist quality of the general principle of proportionality in this volume (see Chapter 24 in this Handbook). Proportionality regulates the way basic legal processes are performed, such as the use of countermeasures for law enforcement. When a state, for example, suspends treaty performance as a countermeasure, the suspension must be proportionate to the injury suffered. In the ICJ’s Gabçikovo-Nagymoros decision, the court held that Slovakia’s unilateral implementation of a by-pass channel on the river Danube was a disproportionate response to Hungary’s suspension of cooperation in a joint river management plan. The ICJ ordered the parties to negotiate a peaceful resolution of their dispute (Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 7). Peters relates how proportionality has been found by the US Supreme Court to be an implicit part of the US Constitution and has similarly been found by courts in several states to be part of their constitutional order. Proportionality has been included expressly in more recent constitutions, including all of the constitutions of Central and Eastern Europe, Latin America, Australia, New Zealand, South Africa, and others. Peters makes the case for characterizing proportionality as a ‘high-grade’ constitutional principle because it is an ‘overarching’ structural principle, reducing fragmentation and fulfilling the ‘constitutional role of creating unity’ (see Peters, Chapter 24 in this Handbook). Proportionality is, however, more than a constitutional principle. It could be eliminated from all constitutions but would remain part of the law because proportionality is a natural law principle. B

Uniquely Constitutionalist Principles

In addition to proportionality, other rules perform the role of unifying legal systems, including the international one. Some of these fit under the constitutional function of ‘separation of powers’ and some support popular participation in law-making and governance. To the extent these rules are based on positive law, rather than natural law, they may be counted as uniquely ‘constitutionalist’. They do not overlap with natural law principles. The ILC Report on Fragmentation contains a review of the premises, principles, rules, and processes that unify international law in contrast to the social and legal factors that tend toward fragmentation of the field, breaking it down into sectors. The Report does not indicate that any theory of law such as the one presented here is part of what unifies international law. It does list the categories of durable law – jus cogens and general principles. Other examples featured in the Report are of rules tending toward orderly society but subject to change through positive law mechanisms. Many of these are also found in national constitutions or constitutional jurisprudence. They are changeable, but may be subject to additional conditions when

222  Handbook on global constitutionalism compared with non-constitutional positive law. Two examples are briefly reviewed here: The ‘later-in-time’ rule and provisions of the United Nations Charter. The ILC Report’s example of the ‘later-in-time’ rule qualifies as uniquely constitutionalist for the international legal system. It is a common rule applied by courts everywhere. It has some connection to the natural law procedural principles like due process because the later-in-time rule helps subjects of the law know what law is binding on them at any specific time (Fuller 1969). More directly, however, the later-in-time rule is a changeable rule of positive law that guides courts to respect the on-going work of political decision-makers. In other words, it supports separation of powers. A court may prefer an older treaty rule or statutory rule on a particular matter for reasons of policy but must apply the newer treaty rule as adopted by the executive and/or legislative branches of governments in treaty form or as a statute. The later-in-time rule helps to resolve conflicts among rules and principles. It is a practical, unifying feature of international law, but has its limits. A later treaty or statute cannot invalidate an earlier natural law principle. The United Nations Charter is another example of positive law that qualifies as constitutionalist owing to the fact its rules are difficult to change (Bodansky 2011, p. 373). Charter Article 103 is featured in the ILC Report as a provision of great importance for unifying international law and countering fragmentation. Bardo Fassbender argues in this Handbook that the Charter is more than constitutionalist in character but is or is ‘closely associated’ with a constitution for the international community. ‘The UN Charter shows a number of strong constitutional features. In particular, it includes (explicitly and implicitly) rules about how the basic functions of governance are performed in the international community; that is, how and by whom the law is made and applied, and how and by whom legal claims are adjudicated. It also establishes a hierarchy of norms in international law’ (Fassbender, Chapter 25 in this Handbook). In fact, natural law establishes the hierarchy of norms, but the Charter does feature a uniquely constitutionalist hierarchical principle in Article 103. Article 103 mandates that the Charter prevails in cases of conflict with other treaty obligations. This is constitutionalist for the international system, especially when it is recalled that amending the Charter requires super-majority voting in both the General Assembly and the Security Council, where even one permanent member may veto a change. These amendment provisions make the Charter clearly part of the global community’s higher law. Yet, the Charter is changeable, as is even Article 103. Indeed, the Charter can be terminated. In that case, only the immutable principles of natural law codified in its provisions would remain.

CONCLUSION Scholars who see a global constitution or constitutionalism generally distinguish among legal rules and principles as constitutionalist or not. This chapter adds another vital level of analysis. Underlying all of law are certain premises of natural law. The basic premise, for example, that law is binding is beyond constitutions because it supports the binding nature of constitutions. It is a premise of natural law. In addition, certain principles are inherent to law. They do not change on the basis of positive law, even the heightened requirement of positive constitutional law principles. The jus cogens norms and general principles are in this category. They are natural law principles that ensure the normativity of law. Without them law is not law. Some are included by scholars in the category of constitutionalist, such as the principle of equality

Natural law at the foundation of global constitutionalism  223 and the prohibition on the use of force. Nevertheless, all of positive law, which includes constitutions, could be terminated tomorrow. Natural law would continue, so long as there is law.

REFERENCES Allott, P. (2002), The Health of Nations, Cambridge: Cambridge University Press. Austin, J. (2009[1832]), The Province of Jurisprudence Determined, Cambridge: Cambridge University Press. Berman, H.J. (1983), Law and Revolution: The Formation of the Western Legal Tradition, Cambridge, MA: Harvard University Press. Bodansky, D. (2011), ‘The constitution of constitutionalism’, in J. Klabbers, A. Peters, and G. Ulfstein (eds), The Constitutionalization of International Law, Oxford: Oxford University Press, pp. 373–6. Boyle, J. (1987), ‘Thomas Hobbes and the invented tradition of positivism: reflections on language, power, and essentialism’, University of Pennsylvania Law Review, 135, 383–426. Capps, P. (2020), ‘Natural law and the law of nations’, in A. Orakhelashvili (ed.), Research Handbook on the History and Theory of International Law, Cheltenham, UK/Northampton, MA: Edward Elgar Publishing, pp. 58–89. Cançado-Trindade, A.A. (2013[2005]), International Law for Humankind: Towards a New Jus Gentium, Leiden: Martinus Nijhoff. Cheng, B. (1953), General Principles of Law: As Applied by International Courts and Tribunal, London: Stevens & Sons. Crowe, J. (2019), Natural Law and the Nature of Law, Cambridge: Cambridge University Press. Doomen, J. (2011), ‘The meaning of “international law”’, The International Lawyer, 45 (3), 881–93. Duke, G. (2019), ‘Aristotle as natural law theorist’, in J. Crowe and C.Y. Lee (eds), Research Handbook on Natural Law Theory, Cheltenham, UK/Northampton, MA: Edward Elgar Publishing, pp. 13–30. Dyzenhaus, David (1992), ‘Why positivism is authoritarian’, American Journal of Jurisprudence, 37, pp. 83–112. Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community Leiden: Martinus Nijhoff Publishers. Fillafer, F.L. and J. Feichtinger (2019), ‘Natural law and the Vienna School: Hans Kelsen, Alfred Verdross, and Eric Voegelin’, in I. Bryan and J. McGarry, Hans Kelsen and the Natural Law Tradition, Leiden: Brill Publishers, pp. 425–61. Finnis, J. (1980), Natural Law and Natural Rights, 2nd edn, Oxford: Oxford University Press. Fitzmaurice, G.G. (1959), ‘The law and procedure of the International Court of Justice 1954–1959’, British Yearbook of International Law, 35, pp. 183–231. Fuller, L. (1969), The Morality of Law, revd edn, New Haven, CT: Yale University Press. Gardam, J. (2004), Necessity, Proportionality and the Use of Force by States, Cambridge: Cambridge University Press. Green, L. and Adams, T. (2019) ‘Legal positivism’ in E.N. Zalta (ed.), Stanford Encyclopedia of Philosophy, revd edn, https://​leibniz​.stanford​.edu/​friends/​members/​view/​legal​-positivism/​. Grotius, Hugo (1995[1646][1625]), De Jure Belli ac Pacis (The Law of War and Peace), F.W. Kelsey (trans.), Clark, NJ: The Lawbook Exchange. Hart, H.L.A. (1961[1970]) The Concept of Law, Oxford: Clarendon Press. Horsley, R. (1978), ‘The law of nature in Philo and Cicero’, The Harvard Theological Review, 71 (1–2), 35–59. International Law Commission (2006), ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, Yearbook of the International Law Commission, II (Pt. Two), pp. 175–84. International Law Commission (2022), ‘Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’, Yearbook of the International Law Commission, II (Pt. Two). International Law Commission (2022), ‘Third report on general principles of law’, Yearbook of the International Law Commission, II (Pt. Two).

224  Handbook on global constitutionalism Kalmbach, S. (2017), ‘Hugo Grotius: On the conquest of Utopia by systematic reasoning’, in S. Kadelbach, T. Kleinein, and D. Roth-Isigkeit (eds), System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel, Oxford: Oxford University Press. Kelsen, H. (1992[1934]), Introduction to the Problems of Legal Theory (Reine Rechtslehre or Pure Theory of Law), B.L. Paulson and S.L. Paulson (trans.), Oxford: Oxford University Press. Klabbers, J., A. Peters, and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford: Oxford University Press. Kleinschmidt, H. (2105), ‘Naturrecht und Völkerrecht? Beobachtungen zu Wandlungen der Rechts-Quellentheorie seit Ende des 19. Jahrhunderts’, Historiches Jahrbuch, 135, 364–411. Lachenmann, F. (2011), ‘Legal Positivism’, Max Planck Encyclopedias of International Law. Lauterpacht, H. (1946), ‘The Grotian tradition’ British Yearbook of International Law, 23, pp. 1–53. Marmor, A. and A. Sarch (2019), ‘The nature of law’, in E.N. Zalta (ed.), Stanford Encyclopedia of Philosophy, https://​plato​.stanford​.edu/​archives/​fall2019/​entries/​lawphil​-nature. Neff, S. (2014), Justice Among Nations: A History of International Law, Cambridge, MA: Harvard University Press. Nussbaum, A. (1954[1947]), rev’d edn, A Concise History of the Law of Nations, New York: The Macmillan Company. O’Connell, M.E. (2019), The Art of Law in the International Community, Cambridge: Cambridge University Press. Porter, J. (2004), Nature as Reason: A Thomistic Theory of the Natural Law, Grand Rapids, MI: Wm. B. Eerdmans Publishing. Stolleis, M., and L. Daston (2008), ‘Introduction: nature, law and natural law in early Modern Europe’, in M. Stolleis and L. Daston (eds), Natural Law and Laws of Nature in Early Modern Europe, Jurisprudence Theology, Moral and Natural Philosophy, London: Routledge. Taitslin, A. (2019) ‘Stoic Natural Law as right reason’, in J. Crowe and C.Y. Lee (eds), Research Handbook on Natural Law Theory, Cheltenham, UK/Northampton, MA: Edward Elgar Publishing, pp. 31–56. Tamanaha, B. (2022), ‘Beware Illiberal Natural Law’, Washington University in St. Louis Legal Studies Research Paper No. 22-05-01, https://​ssrn​.com/​abstract​=​4109402. Tasioulas, J. and G. Verdirame (2022), ‘Philosophy of international law’, in E.N. Zalta (ed.), Stanford Encyclopedia of Philosophy, https://​plato​.stanford​.edu/​entries/​international​-law/​. Tuck, R. (1999), The Rights of War and Peace, Oxford: Oxford University Press. Van Ittersum, M.J. (2017), ‘Global constitutionalism in the Early Modern Period: the role of empires, treaties and natural law’, in A.F. Lang, Jr. and A. Wiener (eds), Handbook on Global Constitutionalism, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 47–59. Verdross, A. and H.F. Koeck (1983), ‘Natural law: The tradition of universal reason and authority’, in R. St. J. MacDonald and D. Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory, The Hague: Martinus Nijhof, pp. 17–50. Vermeule, A. (2022), Common Good Constitutionalism, Cambridge, UK: Polity Press. Walter, C. (forthcoming), ‘The role of religion in the formation of international law in Europe’, in P. D’Argent et al (eds), Oxford Handbook of International Law in Europe, Oxford: Oxford University Press. Weeramantry, C. (2004), Universalizing International Law, Leiden: Martinus Nijhoff.

16. International legal constitutionalism, legal forms and the need for villains Jean d’Aspremont

INTRODUCTION Constitutionalism-bashing has been in vogue for some time in international legal scholarship. International legal scholars have deployed an incredible amount of energy to discredit any pattern of argument, structure of thought and conceptual frameworks that comes with constitutionalist overtones. In many respects, such anti-constitutionalist fury among international lawyers is bewildering given the inflated importance and weight granted to international legal constitutionalism on these occasions. Such ferocity is also questionable in the light of the reasonable awareness by most constitutionalist thinkers of the limits of their projects. What is more, variants of constitutionalism are so numerous that it is not sure that the idea means the same for all those who are determined to repudiate it. It is against this backdrop that this chapter ventures into the origins and causes of international lawyers’ unbridled fury against what seems a rather marginal movement in international legal thought. This chapter particularly makes the argument that it is the attachment to some legal forms that has fuelled the passionate crusade against constitutionalism and that contemporary debates on international constitutionalism are nothing more than the continuation of a more fundamental discussion on the concept of international law. This chapter is divided in two main sections. In the first, the varying perceptions of international constitutionalism in contemporary international legal scholarship are explored. It is demonstrated that criticisms of international constitutionalism are not only a very contemporary phenomenon, but also that they come from the whole spectrum of international legal scholars. In the second main section, attention turns more specifically to the relation between constitutionalism and legal forms, the possible causal relationship between the varying degree of attachment of constitutionalist thinkers to legal forms, and the fury against constitutionalism witnessed in contemporary legal scholarship. This chapter ends with some concluding remarks on the need of international legal thought to construct villains to help define it. Two remarks are warranted at this preliminary stage. First, this chapter is neither a defence nor a rebuttal of constitutionalist thinking. Rather, it rests on an endeavour to unravel some of the dynamics at work in the general debate about international constitutionalism in international legal scholarship. Second, a terminological observation is necessary. In international law literature, constitutionalist patterns of argument, structures of thought, and conceptual frameworks are deployed, deciphered, analysed, and criticised through a wide array of denominations: multi-level constitutionalism (Kleinlein 2012a, p. 387), transnational constitutionalism (Kleinlein 2012a, p. 387), global constitutionalism (Kuo 2010; Schwöbel 2011, 2012; Wiener et al., 2012), postnational constitutionalism (Walker 2003, p. 53) and compensatory constitutionalism (Peters 2006, pp. 579–610). Because the following discussion focuses exclusively on international legal scholarship and grapples with both constitutionalist thinking 225

226  Handbook on global constitutionalism and critiques thereto, the generic denomination of ‘international legal constitutionalism’ is preferred.1

THE MANY FACETS OF INTERNATIONAL LEGAL CONSTITUTIONALISM No one would challenge that constitutionalist patterns of argument, structures of thought and conceptual frameworks have long informed international legal scholarship. In the late nineteenth century, some international lawyers shared a calling for a cosmopolitan sense of global public conscience.2 However, it was probably not until the beginning of the twentieth century that the first serious constitutionalist turn in international legal thinking was witnessed, geared towards the substantive unity of international law and the rule of law (Verdross 1926).3 These early constitutionalist approaches were emboldened by the liberal-cosmopolitan movement that arose in reaction to the Second World War, especially in Germany,4 and to some extent in Anglo-Saxon scholarship, as is illustrated by the work of Wolfgang Friedmann (1964) and Clarence Wilfred Jenks (1958). Nevertheless, among all the many ancestors of today’s international legal constitutionalism,5 it is probably Alfred Verdross that is currently considered the main forebear (see Simma 1994, pp. 259–61; de la Rasilla del Moral 2010a, 2010b; Broude and Andreas 2012; Kleinlein 2012b, p. 708; see the remarks of Fassbender 2007, p. 312; Collins 2009, pp. 253–4). The number of international legal scholars openly adopting constitutionalist patterns of argument, structures of thought, and conceptual frameworks is more limited than is usually assumed.6 In contrast, international legal scholars taking arms against constitutionalist thinking are aplenty. A quick scan of the literature suffices to note that constitutionalism-bashing scholarship dramatically outweighs literature promoting constitutionalist thinking. Such disproportion is self-reproducing, as the more vocal and prolific anti-constitutionalist scholarship becomes, the fewer scholars venture to vindicate constitutionalist patterns of argument, structures of thought and conceptual frameworks.7 To their credit, constitutionalist scholars, albeit sometimes under pressure from their critics, do not baulk at bringing the limits of their project to the surface. For instance, they recognise that international legal constitutionalism comes to portray the world according On the difference between constitutionalism and constitutionalisation, see the remarks of Tsagourias (2007a, p. 1). 2 On the sense of a global public consciousness in the work of Westlake, Bluntschli, Mancini and Lorimer, see Koskenniemi (2002, pp. 11–97). 3 On Verdross as one of the fathers of constitutionalism, see Fassbender (2007). See also de la Rasilla del Moral (2010a). 4 For an overview of the German legal scholarship in this respect, see Oeter (2008, p. 39). 5 On Herman Mosler as another ancestor of international constitutionalism, see Fassbender (2007, p. 313). 6 See Somek who claims that ‘unsurprisingly, constitutionalisation talk falls on fertile ground in a country where the national constitutional is revered as the repository of legal reasons’ (2009a, p. 22). On the nuances of mainstream European scholarship and the idea that European scholarship cannot be reduced to constitutionalist thinking, see Kumm (2009b). 7 In these circumstances, it is no surprise that constitutionalist thinkers turn more defensive these days. See, for example, Peters (2006, p. 607). 1

International legal constitutionalism, legal forms and the need for villains  227 to a constitutionalist lexicon that is loaded by their national constitutional tradition (see the remarks of Kennedy 2008, p. 854) and domestic biases (Fassbender 2007, p. 308). They also acknowledge that they are engaged in a rehabilitation of institutions (see the remarks of Kennedy 2008, p. 855). Likewise, they do not always seek to obfuscate the descriptive, normative and evaluative dimensions of constitutionalist thinking (Peters 2012) and the tensions that may arise between them (Fassbender 2007, p. 320). Even the development of some form of critical constitutionalism is observable (Klabbers 2004, 2009).8 Such critical introspection and acknowledgement are of course not complete. Nor does it excuse or alleviate the problems that come with constitutionalism. The point here is simply that constitutionalist thinkers are perhaps not as dogmatic and blindfolded as they are usually portrayed by their nemeses. It is in this sense that the rage witnessed in international legal scholarship against those constitutionalist thinkers can also be seen as disproportionate, reinforcing the feeling that the actual importance of constitutionalist thinking tends to be magnified by its critics. International Legal Constitutionalism as Orthodoxy or Eccentricity? Critics of international legal constitutionalism, while all claiming that it is a mainstream approach of some sort, diverge as to whether it constitutes some dangerous orthodoxy or some inappropriate eccentricity.9 For instance, more traditional international lawyers perceive international legal constitutionalism as an overly progressive critique of traditional scholarship.10 For them, international legal constitutionalism draws on some problematic normative paradigms, most notably the existence of an international society that shares ‘global values’.11 In their eyes, international legal constitutionalism flirts with natural law, brings about unaccounted changes in the existing law (Stone Sweet 2009), and comes down to a form of political activism (Stone Sweet 2009). Because its formal categories are meant to be ‘derived’ from global values, international legal constitutionalism is thus said to rest on an ‘old strategy of natural law’ (Somek 2009a, p. 25). For these scholars, international legal constitutionalism is similarly discredited for trying to ensure the autonomy of international law towards state sovereignty and state consent (for some remarks, see Kleinlein 2012a, p. 387) and it has similarly been criticised as manifesting a vain idealism of unity and coherence (Somek 2007). It has also been suggested that the formal unity pursued by international constitutionalists is a mirage luring scholars into believing that international law is more akin to constitutional law than private law, and that this may well end up cementing the fragmentation of the primary rules of international law (Klabbers 2004).12 Along the same lines, it has been contended that

For a claim of a Kantian form of constitutionalism that is a mind-set about how to act in a political world and to judge between fixed textual understandings and predetermined objectives, see Koskenniemi (2007b). 9 For an insightful overview of constitutionalism and its critiques, see Tsagourias (2007a) and in particular the contribution of Werner (2007, p. 329). 10 See the remarks of Klabbers on the moralism behind constitutionalism (2008, p. 16). 11 For a criticism of this dimension of constitutionalist theories, see d’Aspremont (2007). See also Collins (2009). 12 On the different conceptions of formal unity, see the interesting work of Prost (2011). 8

228  Handbook on global constitutionalism constitutionalism – which is usually seen as a countermove to the so-called fragmentation of international law13 – actually exacerbates fragmentation (Klabbers 2004, p. 53).14 At the other end of the academic spectrum, scholars generally seen – or self-described – as ‘critical’ have taken issue with international legal constitutionalism for its foundational problems (Werner 2007, pp. 330–31). They have also berated constitutionalists’ striving for the reinvention of sovereign authority at the international level (see Kennedy 1994, p. 14) or for their reproduction of domestic tensions.15 International constitutionalists have also been criticised for attempting to find a substitute for sovereignty in an international system where choices are made by experts having recourse to technical vocabularies (Koskenniemi 2007a, p. 29; see also the criticism by Koskenniemi 2007b; see, however, Koskenniemi 2009). In the same vein, these critics have ridiculed international legal constitutionalism for its attempt to control politics (Werner 2007, p. 330) or its postponement of political problems (Klabbers 2004, p. 46; see also the criticisms of Patterson 2015). Some other critics in this category have pinpointed the hegemonic overtones of their agenda purportedly dedicated to the promotion of global values (d’Aspremont 2007).16 By the same token, international legal constitutionalism has been criticised for being anti-pluralistic and holistic (Krisch 2010) and for legitimising the order in place.17 From the same end of the academic spectrum, the methodology of international legal constitutionalism has been attacked for being a hotchpotch (Stone Sweet 2009). Interestingly, some of these critics have continued to deem constitutionalism a worthy enterprise and have accordingly sought to salvage constitutionalist patterns of argument, structures of thought, and conceptual frameworks of some sort by floating avenues for reform (Schwöbel 2012; see also Klabbers 2004; Schwöbel 2011, esp. ch 4, 2012; Schiff Berman 2013). Such attempts to reform constitutionalism have made the determination of the orthodox or eclectic nature of constitutionalist thinking even more relative. Constitutionalists have tried to rebut some of these criticisms wherever they come from, that is whether they originate from more traditional scholars or from more critical scholars. For instance, they have contended that international legal constitutionalism acknowledges politics and does not necessarily put an end to it (Peters 2009, p. 407). They have similarly refuted allegations that constitutionalism is a conscious or unconscious reaction against fragmenta-

For a description of constitutionalism as a fragmentation counter-move, see Klabbers (2004, pp. 31, 49, 2014, p. 266); Dunoff and Trachtman (2009, p. 2); Koskenniemi (2007a, p. 19, 2007b, p. 18). For some claims by constitutionalists that constitutionalism reins in fragmentation, see de Wet (2012, pp. 1224, 1229); Fassbender (2007, pp. 309–11); Tomuschat (1999, p. 89). 14 On the idea that constitutionalism and fragmentation are mutually reinforcing and ­co-constitutive phenomena, see Kleinlein (2012b). 15 On the idea that domestic biases of constitutionalist thinking means importing tensions of domestic structures of thought, see Werner (2007, p. 353); Kleinlein (2012a, p. 408). See also Schwöbel (2012, p. 19). See Somek who claims that ‘unsurprisingly, constitutionalisation talk falls on fertile ground in a country where the national constitution is revered as the repository of legal reasons’ (2009a, p. 22); Kennedy (2008, p. 854). 16 See also Koskenniemi (2009, p. 17), according to whom constitutionalism and empire go well together even though constitutionalism is closely connected to transparency and accountability; Koskenniemi (2005); Werner (2007, pp. 341, 347). See also Schwöbel (2012, p. 2); for a discussion of this dimension of constitutionalism and of the critique thereof, see van Mulligen (2011). 17 On the idea that the notion ‘constitution’ carries an element of legitimisation, see Klabbers (2004, pp. 45, 47, 2014, p. 266); Kumm (2009a, p. 260); Kleinlein (2012a, p. 413); Schwöbel (2012, p. 13). 13

International legal constitutionalism, legal forms and the need for villains  229 tion.18 They have claimed that fragmentation reinforces constitutionalisation (de Wet 2012, p. 1229) or that global values come down to fluid common interest (see Kleinlein and Peters 2014). They have also asserted that it is possible to reconcile global constitutionalism with pluralism (Stone Sweet 2009; Schiff Berman 2013). Whatever the merits of these rebuttals, it is the fact that all these attacks against constitutionalism emanate from the entire academic spectrum – that is, from both traditional and critical international lawyers – that ought to draw the attention here. One Constitutionalism or Several Constitutionalisms? Historical and non-historical taxonomies on the variety of existing constitutionalist patterns of argument, structures of thought and conceptual frameworks abound in international legal scholarship. This variety in the cognition of international legal constitutionalism, however, shows the multifaceted character of constitutionalist thinking in international law. For the sake of the argument developed in the next section, it suffices to say that, to a large extent, the multifacetedness of constitutionalist thinking comes down to tweaks in the articulation of three coexisting – and sometimes co-constitutive – poles: the ‘descriptive’, the ‘normative’ and the ‘evaluative’. According to the account made here, these three dimensions of international legal constitutionalism constitute three recurring components at work in most constitutionalist international legal scholarship. Each of them calls for a few observations. First, international legal constitutionalism comes with a descriptive dimension in that it purports to describe international law in constitutionalist terms. In this sense, it provides a descriptive framework that produces an image of international law as actually being based on (and revolving around) existing constitutional mechanisms such as jus cogens, erga omnes obligations and human rights (for an illustration of such descriptive moves in international legal constitutionalism see Tomuschat 1993, p. 210; Simma 1994; de Wet 2006, 2012, pp. 1213–19; Klabbers et al. 2009; Peters 2009, 2012, 2015). Such a descriptive framework simultaneously allows constitutionalist thinkers to find confirmation that these international legal rules perform constitutional functions (Peters 2006, p. 610). In the same vein, it becomes possible to claim that public international law has grown autonomous from state consent (see, for example, Tomuschat 1993; see the remarks of Kleinlein 2012b, p. 704) and is able to ‘explain’ some recent changes in international law (Werner 2007, p. 331; Wiener 2009; Kleinlein 2012b, p. 706; Schwöbel 2012, p. 14; van Aaken 2012, p. 155). It is worth noting that this descriptive dimension of constitutionalism – and the allegedly empirical findings made by virtue of it – are barely disputed by most international lawyers, whether or not they espouse a constitutional approach to international law. They accept a great deal of this descriptive framework and many of the findings it produces. This is so because they have come to observe some constitutionalist moves in the case- law of courts.19 Their inclination to accept such findings is also informed by the extent to which they see

18 See Peters (2015, p. 65) arguing that a constitutional perspective allows for a more adequate description of the internal order as it stands, exactly because of the latter’s fragmented character. 19 See the constitutionalist overtones of the decision Case T-306/01, Yusuf and Al Barakaat International Foundation v Council and Commission, 21 September 2005, [2005] ECR II-3533; Case T-315/01, Kadi v Council and Commission, 21 September 2005, [2005] ECR II-3649. On the constitutionalist aspects of that decision see d’Aspremont and Dopagne (2008).

230  Handbook on global constitutionalism constitutionalisation at work in international institutions (see, for example, Peters 2011; de Wet 2012, p. 1219).20 Indeed, following the reinforcement of the autonomy and institutions of international organisations,21 most international lawyers will agree with constitutionalists that some ‘micro-constitutionalisation’ (Peters 2006, p. 593) can be witnessed within international organisations, thereby providing some support for the broader descriptive framework proposed by international constitutionalists (Kleinlein 2012a, p. 403; see also the remarks of Stone Sweet 2009). The second dimension of international legal constitutionalism is unsurprisingly normative. International legal constitutionalism bears a normative dimension in that it purports to reinvent and reform international law according to constitutionalist lexica and values.22 The normative character of international legal constitutionalism and its tables of values necessarily come with a programme for action for international lawyers and the identification of a need for new rules of international law.23 Such values – and thus such programmes for action – include the furtherance of legal unity, the consolidation of human rights, the further relaxation of the role of consent and regulation of politics through institutions (see, for example, Tomuschat 1993; see the remarks of Werner 2007, pp. 329, 330), and the autonomisation of international law from state sovereignty (Peters 2006, pp. 586, 2009, p. 398; see, for example, Tomuschat 1993, p. 237; Kumm 2004; on this aspect of constitutionalism, see the remarks of Kleinlein 2012a, p. 387). A third – and sometimes overlooked – dimension of international legal constitutionalism pertains to the evaluative yardsticks it provides.24 This dimension builds on the combination of the aforementioned normative and descriptive frameworks with a view to identifying those areas of the international legal order where action is needed from international lawyers (for some illustrations, see Kumm 2004; Peters 2006, 2009, p. 405, 2012, p. 135; Klabbers et al. 2009, pp. 4, 10, 348, 351–2; Wiener 2009; de Wet 2012, p. 1219). This evaluative dimension of international legal constitutionalism has been dubbed the ‘critical potential’ (Peters 2006, p. 510; see also Peters 2009, p. 411) of constitutionalism by constitutionalist thinkers themselves. It is interesting to note that, to a certain degree, this evaluative dimension of constitutionalism can be understood as having developed in reaction to earlier charges according to

20 In the context of international institutional law, it should be noted that for some scholars, constitutionalism comes with a slightly different meaning and refers to the placement of limits on the exercise of power of international organisations. See, for example, Klabbers (2004, p. 32). 21 For an explicit use of the label ‘constitutions’ to qualify the constitutive instrument of international organisations, see the Constitution of the International Labour Organization, 9 October 1946, 38 U.N.T.S. 3; see also Constitution of the Food and Agricultural Organization of the United Nations, 16 October 1945, Arts 3(8), 19, 1 UNYB 194 6–1947, 693, 694, 697; Constitution of the United Nations Educational, Scientific and Cultural Organization, 16 November 1945, 4 U.N.T.S. 275; Constitution of the World Health Organization, 22 July 1946, 14 U.N.T.S. 185; Constitution and Convention of the International Telecommunication Union, 22 December 1992, 1825 U.N.T.S. 3. 22 For some illustrations, see Peters (2009, 2012, esp. pp. 129–35); Tomuschat (1993). On this aspect of constitutionalism, see the remarks of Kennedy (2008). See also van Mulligen (2011, p. 303); Schwöbel (2012, p. 10). 23 It is in that sense that it has been claimed that constitutionalism comes with managerialism. See the remarks of Koskenniemi (2007b, p. 17). 24 The evaluative dimension of mainstream international constitutionalism is of course very different from Koskenniemi’s constitutionalism, which is also evaluative but is more akin to Kantian freedom. See Koskenniemi (2009).

International legal constitutionalism, legal forms and the need for villains  231 which constitutionalists are ‘sorry comforters’ (the expression is from Kleinlein 2012a, p. 413) and which had targeted the descriptive dimension of international legal constitutionalism (Peters 2009, p. 411). Although it is common that a normative agenda is accompanied by a descriptive framework and vice versa, it is worth noting that it is the articulation between the ‘descriptive’ and the ‘normative’ in international legal constitutionalism that has fuelled most discussion in the literature (Werner 2007, p. 329; van Mulligen 2011; Kleinlein 2012b; see also Schwöbel 2012; van Aaken 2012). For instance, it has been argued that such multifacetedness comes with paradoxes (Werner 2007). The articulation of the descriptive and normative dimensions of constitutionalism has been similarly criticised as bringing about a mixture of methodologies (Stone Sweet 2009). It has also been said that the coexistence of these two dimensions of international legal constitutionalism contributes to the hybridity of such an approach (van Mulligen 2011, p. 279) and makes it necessarily torn by dilemmas (van Mulligen 2011, p. 278). It is this methodological syncretism (Stone Sweet 2009) inherent in the multifacetedness of international legal constitutionalism that has generated the great variety of charges described in the previous section. It must be acknowledged that there is nothing surprising in the aggregation of descriptive and normative enterprises as that witnessed in relation to international legal constitutionalism. It has long been demonstrated in jurisprudence and legal theory that the descriptive cannot be estranged from the normative (Perry 1998, pp. 438, 466). It is thus very common for scholarly projects that seek to map a certain practice to end up remaking and re-imagining that practice according to a specific normative agenda (Kennedy 2008, p. 835; see also Koskenniemi 2007b, p. 17).25 In this respect, it is important to note that while the ‘normative’ often informs the ‘descriptive’, the opposite is also true. This is also the case in international legal constitutionalism, as the existing constitutional features observed by virtue of the descriptive framework project an image of constitutionalisation as corresponding to an ineluctable and irresistible march of mankind towards a fully constitutional order (de Wet 2012, p. 1219). In this sense, there is no doubt that the descriptive and normative aspects of international legal constitutionalism are mutually reinforcing.26 The same holds for the evaluative part of constitutionalism, which is necessarily interwoven with the descriptive and the normative of which it is a continuation. In the case of international legal constitutionalism, the descriptive and the normative, when taken together, shed light on some specific problems that require some type of intervention (Kennedy 2008, p. 845), for instance by creating a certain demand for a certain type of legitimacy (Kleinlein 2012b, p. 713; for an illustration, see Peters 2006, 2009, p. 410). These three dimensions can thus be seen as interwoven.

25 It is also in this sense that constitutionalism has been famously described by Weiler as ‘a prism though which one can observe a landscape in a certain way, an academic artefact with which one can organise the milestones and landmarks within the landscape . . . an intellectual construct by which one can assign meaning to, or even constitute, that which is observed’ (1999, p. 223). 26 For van Mulligen, the ‘descriptive’ and the ‘normative’ can be reconciled by virtue of a Kantian transcendental argument (2011, p. 279).

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CONSTITUTIONALISM AND THE ATTACHMENT TO LEGAL FORMS: THE CAUSE OF THE FURY? It is worth noting that most constitutionalist scholars, contrary to some of their ancestors,27 deny that they espouse methodological moves and paradigms similar to those of natural law (Peters 2009, p. 409). Instead, they claim that natural law methods and content-dependency have been absorbed by positive international law (in the same vein, see the remarks of Kleinlein 2012a, p. 398; Klabbers 2014, p. 267). Irrespective of the labels, however, it seems difficult to deny that international legal constitutionalism espouses some form of objectivism reminiscent of that found in natural law. Second, constitutionalist scholars, subject to some exceptions (see, for example, Tomuschat 1999, p. 28; Fassbender 2007, p. 320), generally balk at describing their methodological choices as positivistic. As they are seeking to reinvent international law and move away from state consent (see above), they are wary of using such a loaded label which could be interpreted as contradicting their own ‘anti-sovereignty’ agenda. Yet, it is difficult to contest that some of their methodological postures are grounded in constructions traditionally found in legal positivism (van Mulligen 2011, p. 303; Klabbers 2014, p. 267) – whatever this means – be it the idea of ‘rules’, the use of the doctrine of sources and the reliance on state practice, content-independence or the distinction between law and non-law (d’Aspremont and Kammerhofer 2014). This flirting of international legal constitutionalism with methodological postures found in both natural law and legal positivism means that international legal constitutionalism rests on an ‘interplay between legal positivism and naturalism’ (Klabbers 2014, p. 267). For constitutionalists, such blended methodological constructions – which have been criticised for their hybridity (Stone Sweet 2009) – are necessary to realise the progressive agenda of international legal constitutionalism while allowing it ‘not to lose touch with actual state practice’ (Fassbender 2007, p. 320) and preserve its credibility (see, for example, Tomuschat 1999, p. 26; Klabbers 2014, p. 285). There are several reasons why the finding of such an interplay between legal positivism and natural law does not call for further discussion here. First, there is probably nothing really new in an approach to international law that oscillates between naturalistic and positivistic postures (see Koskenniemi 2005). For instance, the same holds for other attempts to make sense of global governance, such as Global Administrative Law (Somek 2009b; d’Aspremont 2012). Second, that such dual flirting is not fully acknowledged by international constitutionalists themselves is not of great relevance. Most doctrines and theories are built on unconscious or unrecognised methodological moves. Third, natural law and legal positivism are the object of so many diverse understandings that such labels may at times be a bit empty. For all these reasons, it seems more relevant to focus on another – but far more fundamental – ambiguity that permeates the patterns of argument, structures of thought and conceptual frameworks at work in constitutionalist thinking, namely, the role that the latter bestows upon legal forms. It is the object of the following sub-section to elaborate on the ambivalence pertaining to the role of legal forms in international legal constitutionalism.

27 This is in contrast to Verdross who had no qualms basing himself on natural law. See Simma (1995); see also Kleinlein (2012a, p. 412).

International legal constitutionalism, legal forms and the need for villains  233 International Legal Constitutionalism and Legal Forms It is necessary to formulate two preliminary remarks. First, formalism is understood here as the theoretical and methodological posture28 whereby the ascertainment of norms as legal rules and/or the determination of the content of legal rules is made contingent on the content-independent operation of some legal forms. Legal forms are construed here as types of content-independent constraints on patterns of argument, structures of thought and conceptual frameworks. Second, it is essential to distinguish between legal positivism and formalism, and recall that the natural law tradition has never come down to a repudiation of legal forms. It could even be said that formalism – and especially formal law-ascertainment – was born with the natural law tradition.29 In that sense, the ambiguous relationship between international legal constitutionalism and formalism is not simply the mechanical reflection of its simultaneous flirting with both legal positivism and natural law, the attachment to legal forms not necessarily being the expression of the positivist leaning of international legal constitutionalism. The attachment to legal forms of international legal constitutionalism is witnessed throughout its three dimensions as they have been introduced above, namely, the ‘descriptive’, the ‘normative’ and the ‘evaluative’. Each of these dimensions is dependent on some degree of formalism although the degree of their reliance on formalistic patterns of argument, structures of thought and conceptual frameworks vary. It is the descriptive dimension of constitutionalism that is most dependent on legal forms. Indeed, international legal constitutionalism continues to describe international law (and the world) in terms of rules and, hence, is very dependent on legal forms to apprehend such rules.30 The world – and the international legal order – apprehended by constitutionalist descriptive frameworks appears to be a world made of rules pertaining to jus cogens, erga omnes obligations, hierarchy, supremacy of human rights, and so on. Yet, the descriptive dimension is not the only dimension of international legal constitutionalism that envisages the world and the international legal order in terms of rules and is thus in need of legal forms. The same holds for the world – and the international legal order – projected by the ­normative agenda of international legal constitutionalism. The global values of international legal constitutionalism, and thus its programme of action, are supposed to be translated into new rules themselves constructed through legal forms.31 The evaluative framework of constitutionalism is similarly rule-based, for it is meant to assist in the identification of those rules that are deficient and of those rules by which the former are supposed to be replaced. In that sense, international legal constitutionalism, in all its dimensions, is built on the very idea of rules (Tomuschat 1993, pp. 216–17, 1999, pp. 25–6). The ‘rulism’ of international legal constitutionalism found at all levels is what makes it dependent on legal forms. To capture existing rules, to envisage new rules, or to identify deficient rules,

On the extent to which theory and methodology cannot be severed, see d’Aspremont (2014b, pp. 177–98). 29 By advocating a bipartite classification of law, based on the distinction between natural and positive law, Aquinas – who coined the term ‘positive law’ – and later Hugo Grotius, although they still abided by a substantive conception of validity, resorted to a pedigree test to identify law. On this point, see Finnis (1996, p. 199). 30 On the idea of ‘rules’ and its relationship with formalism, see d’Aspremont (2014a). 31 It is in this sense that it has been claimed that constitutionalism comes with managerialism. See the remarks of Koskenniemi (2007b, p. 17). 28

234  Handbook on global constitutionalism constitutionalist patterns of argument, structures of thought and conceptual frameworks all rest on the operation of legal forms (Klabbers 2014, p. 284). The aforementioned ‘rulism’ of international legal constitutionalism is not the only driver of constitutionalism’s continuous attachment to legal forms. Other parameters explain such a reliance on legal forms. For instance, legal forms are supposed to bring about legitimacy (Peters 2009, p. 409) and credibility (see, for example, Tomuschat 1999, p. 26; see the remarks of Klabbers 2014, p. 285) to those patterns of argument, structures of thought and conceptual frameworks promoted by constitutionalist thinking. Legal forms are also meant to endow constitutionalist lexica with some sort of constraining power (Schwöbel 2012, p. 8), for, short of legal forms, state autonomy would be left intact (Peters 2006, p. 603). Without formalism, it is claimed that international legal constitutionalism ‘remains ultimately incoherent and, what is worse, runs the risk of becoming a fig leaf for hegemonic exercises of power cross-dressed in a mantle of universal values’ (Klabbers 2014, p. 290). This attachment to legal forms explains why constitutionalist scholars continue to adhere to a more or less formal understanding of the sources of international law and the law-ascertainment mechanisms that come with it.32 Indeed, constitutionalist scholars continue to uphold formal mechanisms of law-identification to preserve the possibility of a distinction between law and non-law which they see as being indispensable for the authority of law, the viability of the legal system as well as the rule of law without which their agenda could not be realised (Tomuschat 1999, pp. 26–9). The indispensable role of legal forms also explains why constitutionalists loathe the ‘deformalisation’ of international law (Peters 2009, p 409; on the notion of deformalisation and its various manifestations, see d’Aspremont 2011), including the ‘softening’ of international law (Peters 2006, p. 603). It must be acknowledged that constitutionalist patterns of argument, structures of thought and conceptual frameworks can simultaneously be non-formalistic and purely content dependent (Peters 2009, p. 406). Although the traditional kinship between formalism and voluntarism as well as state-centricism is far from being self-evident (d’Aspremont and Kammerhofer 2014) constitutionalist thinkers deem a departure from legal forms to play down the allegedly dominant state-centricism in international law or seek to undo the role of consent in constitutionalist patterns of argument, structures of thought, and conceptual frameworks (Walter 2007, pp. 191–215). This aforementioned move away from legal forms in international legal constitutionalism is certainly not surprising. It is not difficult to see the extent to which the attachment to legal forms can simultaneously lay down lethal constraints to the project of international legal constitutionalism. Indeed, in the eyes of constitutionalists, legal forms can, at times, dangerously frustrate its agenda, and especially the substantive unity, the demotion of consent, and what they call the legal control of politics (see, for example, Fassbender 2007; p. 320; Klabbers 2014, p. 285). A move away from legal forms is also necessary to allow international legal constitutionalism to swallow the ‘transnational’ and ‘informal’ (de Wet 2012, p. 1222) – which could not be apprehended through legal forms – and subject them to its constitutional structures and global values.33

32 In the same sense, see Werner (2007, p. 330). For Klabbers (2008), much of the debate on constitutionalism in international law can be seen as a debate on sources in disguise. 33 It is interesting to note that the exact same move is witnessed in Global Administrative Law (see d’Aspremont 2012).

International legal constitutionalism, legal forms and the need for villains  235 The Debate on International Legal Constitutionalism as a Mirror of the Abhorrence and Reverence of Legal Forms By adhering to some formalism, international legal constitutionalism reproduces all the problems that come with formalism, and especially the obfuscation of politics and the fake determinacy of patterns of argument, structures of thought and conceptual frameworks. By emancipating itself from legal forms, international legal constitutionalism runs the risk of arbitrariness and hegemony while also making it impossible to preserve the autonomy of law. In that sense, the ambiguous relationship with formalism makes constitutionalist patterns of argument, structures of thought and conceptual frameworks look as though they bring the worst of two worlds. Yet, such a bleak account is simplistic and oblivious of the fact that international legal constitutionalism is never looked at from formalism-friendly and formalism-unfriendly perspectives by a single observer at a time. The merit which observers see in the attachment of constitutionalism to legal forms will generally be accompanied by some resentment towards their anti-formalistic postures, and vice versa. Most observers make an evaluation of constitutionalism depending on their own understanding of the – actual or desired – role of legal forms in international law as a whole. The merits and weaknesses we see in the patterns of argument, structures of thought and conceptual frameworks promoted by international constitutionalists ultimately hinges on our understanding of the – actual or desired – role of legal forms. It is our attachment or repudiation of legal forms that will determine whether we see international legal constitutionalism as a mainstream or a marginal approach as well as being (dangerously or appropriately) orthodox or (dangerously or appropriately) eccentric, as was discussed above. In summary, the way we look at constitutionalism is determined by our understanding of formalism. The foregoing is certainly not meant to defend international legal constitutionalism. Although I have come to reckon that my broadside against constitutionalism a decade ago (d’Aspremont 2007, pp. 219, 255) was slightly disproportionate, as is most of the constitutionalism-bashing witnessed in international legal thought, I continue to believe that constitutionalist patterns of argument, structures of thought and conceptual ­frameworks cannot be salvaged. Like others, I am of the opinion that it does not suffice to reimagine the world according to a constitutionalist lexicon to make it better (Kennedy 2008, p. 856), as I do not think that if the world were built on the paradigms contemplated by constitutionalists it would necessarily be better. Yet, all the fury against international legal constitutionalism that is unfolding in international legal scholarship remains excessive. It is excessive, as was discussed above, because international legal constitutionalism is more marginal and more nuanced than is claimed by its critics. As was demonstrated by the second part of this chapter, the current rage against constitutionalism is similarly excessive because, in the end, it is the expression (and continuation) of a more fundamental debate (and anxiety) about the role of legal forms in international legal thought as a whole. This means that what all those anti-constitutionalist fighters are after is probably not the constitutionalist patterns of argument, structures of thought and conceptual frameworks that are promoted by constitutionalist thinkers.

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CONCLUDING REMARKS: CONSTITUTIONALISM AND THE NEED FOR VILLAINS IN INTERNATIONAL LEGAL THOUGHT A final observation on the emergence and resilience of epistemic rages against some particular approaches to law – like the fury against international legal constitutionalism discussed in this chapter – is warranted. The discussion above has incidentally shown that international legal constitutionalism has joined natural law, formalism, voluntarism, consensualism, legal positivism and others – which are often all conflated under the bogey of ‘Westphalia’ – as one of the new villains of international legal scholarship. Indeed, the anti-constitutionalist fashion witnessed today shares some resemblance with the fury witnessed in relation to natural law, formalism, voluntarism, consensualism, and legal positivism throughout the twentieth century. Just as for natural law, formalism, voluntarism, consensualism and legal positivism before it, the elevation of international legal constitutionalism as one of the new villains of international legal thought has often been nothing more than the continuation of a more fundamental debate on the role of legal forms, often at the cost of exaggerations, tweaks, stretches, disproportions and straw men.34 That international legal thought has found a new villain in international legal constitutionalism is, in itself, nothing remarkable. What is worth noting, however, is that the field has added a new villain to an already long list. It is true that disciplinary fields, such as international law, always need a bunch of villains. Indeed, villains in the consciousness of professionals in social sciences play a defining role in terms of both ideals (and methods) of the discipline and disciplinary identity. The same defining role is played by international legal constitutionalism – just as for natural law, formalism, voluntarism, consensualism and legal positivism before it. International legal constitutionalism has now been elevated into one of the necessary evils against which the profession must define itself and its ideals, especially in relation to legal forms. Should this be bemoaned? Certainly not. International legal thought has always advanced by burning and re-burning its – constantly resuscitated (Kennedy 2000) – villains. Yet, burning and re-burning the villains in search of ideals and identity is one thing. Extending the lists of villains to be burnt is another. The question which the contemporary anti-constitutionalist fury leaves us with is whether multiplying the villains of international legal thought contributes to the refinement of the latter, given that, in the end, the question debated remains exactly the same.

REFERENCES Broude, T. and Andreas, L.P. (2012), ‘Precursors to international constitutionalism: the development of the German constitutional approach to international Law’, Goettingen Journal of International Law, 4 (2), 349–62. Collins, R. (2009), ‘Constitutionalism as liberal-juridical consciousness: echoes from international law’s past’, Leiden Journal of International Law, 22 (2), 251–87. D’Aspremont, J. (2007), ‘The foundations of the international legal order’, Finnish Yearbook of International Law, 18, 219–55.

34  For some general remarks on the straw men constructed around legal positivism, see d’Aspremont and Kammerhofer (2014).

International legal constitutionalism, legal forms and the need for villains  237 D’Aspremont, J. (2011), Formalism and the Sources of International Law, Oxford: Oxford University Press. D’Aspremont, J. (2012), ‘Droit administratif global et droit international’ (‘Global administrative law and international law’), in C. Bories (ed.), Le Droit Administratif Global, Paris: Pendone, pp. 83–94. D’Aspremont, J. (2014a), ‘The idea of rules in the sources of international law’, British Yearbook of International Law, 84, 103–30. D’Aspremont, J. (2014b), Epistemic Forces in International Law, Cheltenham, UK and Northampton, MA, USA: Edward Elgar. D’Aspremont, J. and F. Dopagne (2008), ‘Two constitutionalisms in Europe: pursuing an articulation of the European and international legal orders’, Heidelberg Journal of International Law (ZaÖRV), 68, 939–77. D’Aspremont, J. and Kammerhofer, J. (2014), ‘The future of international legal positivism’, in J. Kammerhofer and J. d’Aspremont (eds), International Legal Positivism in a Postmodern World, Cambridge: Cambridge University Press, pp. 1–19. De la Rasilla del Moral, I. (2010a), ‘The unsolved riddle of international constitutionalism’, International Community Law Review, 12 (1), 81–110. De la Rasilla del Moral, I. (2010b), ‘At King Agramant’s camp – old debates, new constitutional times’, International Journal of Constitutional Law, 8 (3), 580–610. De Wet, E. (2006), ‘The international constitutional order’, International and Comparative Law Quarterly, 55 (January), 51–76. De Wet, E. (2012), ‘The constitutionalisation of public international law’, in M. Rosenfeld and A. Sajo (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 1209–30. Dunoff, L. and J.P. Trachtman (2009), ‘A functional approach to global constitutionalism’, Harvard Public Law Working Paper No. 0 8–57, Harvard University, Cambridge, MA. Fassbender, B. (2007), ‘The meaning of international constitutional law’, in N. Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge University Press, pp. 307–28. Finnis, J. (1996), ‘The truth in legal positivism’, in R. George (ed.), The Autonomy of Law: Essays of Legal Positivism, Oxford: Oxford University Press, pp. 195–214. Friedmann, W. (1964), The Changing Structure of International Law, New York: Columbia University Press. Jenks, C.W. (1958), The Common Law of Mankind, London: Stevens. Kennedy, D. (1994), ‘The international style in postwar law and politics’, Utah Law Review, 7 (1), 7–118. Kennedy, D. (2000), ‘When renewal repeats: thinking against the box’, New York University Journal of International Law and Politics, 32 (Winter), 335–500. Kennedy, D. (2008), ‘The mystery of global governance’, Ohio Northern University Law Review, 34, 827–860. Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58. Klabbers, J. (2008), ‘The paradox of international institutional law’, International Organizations Law Review, 5 (1), 151–73. Klabbers, J. (2009), ‘Setting the scene’, in J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalisation of International Law, Oxford: Oxford University Press, pp. 1–44. Klabbers, J. (2014), ‘International legal positivism and constitutionalism’, in J. Kammerhofer and J. d’Aspremont (eds), International Legal Positivism in a Postmodern World, Cambridge: Cambridge University Press, pp. 264–90. Klabbers, J., A. Peters and G. Ulstein (2009), The Constitutionalisation of International Law, Oxford: Oxford University Press. Kleinlein, T. (2012a), ‘Alfred Verdross as a founding father of international constitutionalism’, Goettingen Journal of International Law, 4 (2), 385–416. Kleinlein, T. (2012b), ‘Constitutionalization in international law’, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, 231, 703–15.

238  Handbook on global constitutionalism Kleinlein, T. and A. Peters (2014), ‘International constitutional law’, Oxford Bibliographies, accessed 12 April 2017 at http://​www​.​oxfordbibl​iographies​.com/​view/​document/​obo​-9780199796953/​obo​ -978019979695 3–0039.xml. Koskenniemi, M. (2002), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge: Cambridge University Press. Koskenniemi, M. (2005), ‘International law in Europe: between tradition and renewal’, European Journal of International Law, 16 (1), 113–24. Koskenniemi, M. (2007a), ‘The fate of public international law: between technique and politics’, Modern Law Review, 70 (1), 1–30. Koskenniemi, M. (2007b), ‘Constitutionalism as mindset: reflections on Kantian themes of international law and globalization’, Theoretical Inquiries in Law, 8 (9), 9–36. Koskenniemi, M. (2009), ‘The politics of international law – 20 years later’, European Journal of International Law, 20 (1) 7–19. Krisch, N. (2010), Beyond Constitutionalism: The Pluralistic Structure of Postnational Law, Oxford: Oxford University Press. Krisch, N. (2014), ‘The decay of consent’, American Journal of International Law, 108 (1), 1–40. Kumm, M. (2004), ‘The legitimacy of international law: a constitutionalist framework of analysis’, European Journal of International Law, 15 (5), 907–31. Kumm, M. (2009a), ‘The cosmopolitan turn in constitutionalism’, in J. Dunoff and J. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 258–325. Kumm, M. (2009b), ‘On the past and future of European constitutional scholarship’, International Journal of Constitutional Law, 7 (3), 401–15. Kuo, M.-S. (2010), ‘Between law and language: when constitutionalism goes plural in a globalising world’, Modern Law Review, 73, 858–82. Oeter, S. (2008), ‘The German influence on public international law’, in Société française pour le droit international, Droit International et diversité juridique, Journée franco-allemande, Paris: Pedone, pp. 29–42. Patterson, D. (2015), ‘Review essay: the dark future of constitutionalism’, 19 March, accessed 8 May 2017 at http://​ssrn​.com/​abstract​=​2580783. Perry, S.R. (1998), ‘Hart’s methodological positivism’, Legal Theory, 4 (4), 427–67. Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental international norms and structures’, Leiden Journal of International Law, 19 (January), 579–610. Peters, A. (2009), ‘The merits of global constitutionalism’, Indiana Journal of Global Legal Studies, 16 (2), 397–411. Peters, A. (2011), ‘The constitutionalisation of international organizations’, in N. Walker, J. Shaw and S. Tierney (eds), Europe’s Constitutional Mosaic, Oxford: Hart, pp. 253–85. Peters, A. (2012), ‘Are we moving towards constitutionalisation of the world community’, in A. Cassese (ed.), Realising Utopia. The Future of International Law, Oxford: Oxford University Press, pp. 118–35. Peters, A. (2015), ‘Constitutional fragments: on the interaction of constitutionalisation and fragmentation in international law’, Working Paper No. 2, Centre for Global Constitutionalism, University of St Andrews, St Andrews. Prost, M. (2011), The Concept of Unity in Public International Law, Oxford: Hart. Schiff Berman, P. (2013), ‘Jurisgenerative constitutionalism: procedural principles for managing legal pluralism’, Indiana Journal of Global Studies, 20 (2), 665–95. Schwöbel, C. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Nijhoff. Schwöbel, C. (2012), ‘The appeal of the project of global constitutionalism to public international lawyers’, German Law Journal, 13 (1), 1–22. Simma, B. (1994), ‘From bilateralism to community interest in international law’, Collected Courses, 250, 259–61. Simma, B. (1995), ‘The contribution of Alfred Verdross to the theory of international law’, European Journal of International Law, 6 (1), 33–54. Somek, A. (2007), ‘Kelsen lives’, European Journal of International Law, 18 (3), 409–51.

International legal constitutionalism, legal forms and the need for villains  239 Somek, A. (2009a), ‘From the rule of law to the constitutionalist makeover: changing European conceptions of public international law’, University of Iowa Legal Studies Research Paper Number 0 9–25, University of Iowa, Iowa City, IA. Somek, A. (2009b), ‘The concept of “law” in global administrative law: a reply to Benedict Kingsbury’, European Journal of International Law, 20 (4), 985–95. Stone Sweet, A. (2009) ‘Constitutionalism, legal pluralism, and international regimes’, Indiana Journal of Global Legal Studies, 16 (2), 621–45. Tomuschat, C. (1993), ‘Obligations arising for states without or against their will’, Collected Courses, 241, 209–12. Tomuschat, C. (1999), ‘International law: ensuring the survival of mankind on the eve of a new century’, Collected Courses, 281, 9–438. Tsagourias, N. (2007a), ‘Introduction – constitutionalism: a theoretical roadmap’, in N. Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge University Press, pp. 1–14. Tsagourias, N. (ed.) (2007b), Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge University Press. Van Aaken, A. (2012), ‘Functional approach to international constitutionalism: the value added of a social science contribution’, Archiv für Rechts und Sozialphilosophie (ARSP), 127, 155–71. Van Mulligen, J.G. (2011), ‘Global constitutionalism and the objective purport of the international legal order’, Leiden Journal of International Law, 24 (2), 277–304. Verdross, A. (1926), Die Verfassung, der Volkerrechtsgemeinschaft (The Constitution of the International Legal Community), Vienna: Springer. Walker, N. (2003), ‘Post national constitutionalism and the problem of translation’, in J. Weiler and M. Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press, pp. 27–54. Walter, C. (2007), ‘International law in a process of constitutionalization’, in J. Nijman and A. Nollkaemper (eds), New Perspectives on the Divide Between National and International Law, Oxford: Oxford University Press, pp. 191–215. Weiler, J. (1999), The Constitution of Europe, Cambridge: Cambridge University Press. Werner, W. (2007), ‘The never-ending closure: constitutionalism and international law’, in N. Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge University Press, pp. 329–67. Wiener, A. (2009), ‘Global constitutionalism: thinking beyond modernity’, paper presented at ‘The Practice(s) of Global Constitutionalism’ at the International Studies Association convention, New York, 15–17 February, accessed 8 May 2017 at http://​ssrn​.com/​abstract​=​2364728. Wiener, A., A.F. Lang, J. Tully, M. Poiares and M. Kumm (2012), ‘Global constitutionalism: human rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–15.

17. Interactional legal theory, the international rule of law and global constitutionalism Jutta Brunnée and Stephen J. Toope1

A constitutional political and legal order, suggest Lang and Wiener in their introduction to this Handbook (Chapter 1), both ‘limits … political decision-making’ and ‘enables the creation of new institutions and laws’. They go on to identify three principles that ‘make manifest these limiting and enabling functions: the rule of law, a balance or separation of powers, and constituent power’. An emergent global constitutional order, therefore, should exhibit ‘some variation’ of these features. The best prism through which to consider the emergence of such an order, argue Lang and Wiener, is that of ‘constitutionalization’, for it gives pride of place to practices and processes, thereby acknowledging the contested nature of global constitutionalism and the diversity of prevailing understandings. We agree that a focus on practices and processes is the most useful way to imagine building up any form of constitutional order in international society. However, as we show, for constitutionalism that reaches beyond the creation of institutions and laws to exist, there are implicit norms that must animate these practices and processes. These norms are internal to law, and are themselves largely procedural, although they are rooted in thin substantive commitments that have been adopted widely around the globe. The terrain of ‘constitutionalism’, or ‘constitutionalization’, as defined by the editors of this Handbook, can be fruitfully explored through the lens of the practice-based, interactional theory of international law that we have developed over the past couple of decades. In that theory, we posit that legal norms arise from social norms based on shared understandings. What distinguishes law from other types of social ordering is adherence to specific requirements of legality, commonly associated with the rule of law. When norm creation meets these criteria and is matched with norm application that also satisfies the legality requirements – when there exists what we call a ‘practice of legality’ – actors can pursue their purposes and organize their interactions through law. While this interactional account of international law most obviously illuminates the idea of an international ‘rule of law’, it also sheds light on the other two elements of constitutionalism identified by the editors. As concerns the separation of powers, it reveals that international law is not primarily dependent upon specific methods of law-making or a particular set of actors, institutions or dispute settlement mechanisms. The rule of law can exist as a form of constitutionalism without a rigorous institutional separation of powers, but we will argue that this constitutionalism requires an internalized separation of the overlapping roles played by key international actors (Dyzenhaus 2014). Our interactional approach also shows that both order and authority come from within law, from continuing practices that meet conditions of legality. Our basic approach aligns with 1 We thank Emanuel Adler and David Dyzenhaus for their extremely helpful comments on an earlier version, and Samuel Mosonyi for helpful research assistance.

240

Interactional legal theory, the international rule of law and global constitutionalism  241 a conception of constitutionalism that understands legal systems to be held together by ‘intrinsic qualities that give law its authority’ (Dyzenhaus 2012, p. 233, emphasis added). Indeed, it suggests that a ‘circular’ understanding of legality, in which authority is internal to law, leads to a more robust account of the rule of law than a ‘linear’ understanding, which must locate ‘law’s starting point in something other than law itself’ (Walters 2016, p. 40). Such a circular approach obviates the need for puzzling over the nature of ‘constituent power’ (or, given our legally based understanding of constitutionalism, ‘constituent authority’), a significant theoretical advantage when considering a complex and diverse international society without a shared political identity (Brunnée and Toope 2023). Interactional law is not fully fledged constitutionalism in the sense that the conditions of legality we describe construct practices of legality, nor necessarily the ‘institutional’ structures of constitutionalism as often understood by political scientists. However, through its particular practice-focused conception of the rule of law, the interactional law framework provides insight into the construction of what might be called ‘constitutional processes’. We do not discern fully formed constitutionalism in current global society, but we do see evidence of a modest rule of law. Of course, the sense of any ‘law’ influencing global affairs is undermined by the aggressive war launched by the Russian Federation against Ukraine and by a growing body of evidence that war crimes have been committed in the prosecution of that brutal war. Nevertheless, interactional international law shows us some means to bolster a modest rule of law, thus serving to illuminate processes that might further the construction of more inclusive constitutional norms and institutions. Despite current anxieties and profound challenges, there does remain a path forward that resists a descent into global chaos. As those processes are reinforced, the interactional law framework demonstrates that a feedback loop can be created whereby actors within global society can learn collectively to value the rule of law more highly, thereby allowing for greater strides in constitutionalism. However, none of this is inevitable. Building interactional law, and reinforcing the rule of law, is a constant effort of practice – as we describe it, a practice of legality. Building robust constitutionalism requires the collective acceptance of internal principles of the rule of law, as well as the iteration of processes and mechanisms of legality that instantiate transparency, predictability and other indicators of healthy legal systems. This is hugely difficult, and will remain so in our increasingly conflict-ridden world. We want to be clear that the characteristics of constitutionalism, based in large part on the rule of law, are not immutable. As we show, the criteria of legality that undergird the practice of legality are in large measure historically contingent. They have arisen in the post-Enlightenment world and are based primarily on process values that are associated with liberal commitments to autonomy and social communication. By the same token, it is conceivable that a future society will have a different understanding of ‘law’, which no longer fits within the framework of legality as we understand it. However, what we call the criteria of legality have proven to be resilient or ‘sticky’, and there is flexibility within the concept of legality. It is possible to imagine a rule of law that is not fixed in deep Western values, and a prospective constitutionalism that is attendant to the global reality of profound diversity. In this chapter we first summarize the interactional approach to international law. Secondly, we connect that approach to ‘circular’, practice-oriented and interpretative understandings of the rule of law. In the third section of the chapter, we will show how those conceptions of the rule of law can help to support a limited ‘constitutionalism’ that is still at a nascent stage in international society. Finally, we argue that a constitutionalism that is expressed primarily

242  Handbook on global constitutionalism through the rule of law is more open to diversity than might at first appear to be the case; indeed, we suggest that it is likely to be more open than forms of political constitutionalism that focus on constituent authority.

A BRIEF ACCOUNT OF INTERACTIONAL INTERNATIONAL LAW In this section, we provide a summary account of the interactional theory of international law.2 For ease of presentation, we treat the three components of the framework sequentially, but we want to stress that they are actually in a dynamic relationship, constantly reinforcing or undercutting one another. What is more, there is no single entry point in the construction and deconstruction of law, even though we begin our explanation with the role of shared understandings. For example, we might conclude a treaty that formally posits a ‘rule’ that actually has little support in practice. However, by using the treaty provision as a tool of ‘education’ or to promote discourse, through continuing argument and interpretation we might build up shared understandings and legal practice that come to support the norm and engender a sense of obligation. Shared Understandings Social norms are grounded in an underlying set of shared understandings supporting first the need for normativity, and then particular norms that shape behaviour. Actors work to generate and promote specific understandings, whether through norm entrepreneurship or through the discourse of epistemic communities. Shared understandings can emerge, evolve or fade through processes of social interaction and social learning (Brunnée and Toope 2010, pp. 56–65). Once in existence, shared understandings are analogous to what Searle calls ‘background knowledge’ (Searle 1995, p. 132), the set of societal assumptions that give context to all interpretation. Shared understandings ground norms that shape how actors perceive themselves and the world, how they form interests and set priorities, and how they make or evaluate arguments. Wenger articulates a similar concept as ‘background practice’ that is constituted through everyday practices (Wenger 1998; Brunnée and Toope, 2010, pp. 62–5). This account of normative evolution does not suggest that there can never be relatively stable norms. It simply highlights that such stability is actually dynamic, dependent upon continuing practice for reinforcement. The Criteria of Legality Legal norms are embedded in and must be broadly in line with the practices and understandings of the society in which they operate (Postema 1994[1999]; Reinold and Zürn 2014). However, shared understandings alone do not make law. Many social norms exist that never reach the threshold of legal normativity. What distinguishes legal norms from other types of social norms is not form or pedigree, nor a particular type of institutionalization, but adherence We borrow the concept of ‘interactional law’ from Lon Fuller. He used the term to highlight the limitations of ‘the prevailing conception of law as a one-way projection of authority’ (Fuller 1969a, p. 221) and the importance of appreciating law as closely tied to its social context (Fuller 1969b[2011]). 2

Interactional legal theory, the international rule of law and global constitutionalism  243 to criteria of legality. The most widely referenced set of legality criteria was proposed by Lon Fuller. We adopt the criteria as shorthand for the rule of law, not because they are necessarily exhaustive, or indeed the only criteria one could imagine, but because they are clear and coherent. In his writings, Fuller tended to apply the criteria of legality most often to the legislative function, but they are relevant beyond that context (Klabbers 2008; Luban 2010). For Fuller, legal norms must be general, prohibiting, requiring or permitting certain conduct. They must also be promulgated, and therefore accessible to the public, enabling actors to know what the law requires. Law should not be retroactive, but prospective, enabling citizens to take the law into account in their decision-making. Actors must also be able to understand what is permitted, prohibited or required by law – the law must be clear. Law should avoid contradiction, not requiring or permitting and prohibiting at the same time. Law must be realistic and not demand the impossible. Its demands on citizens must remain relatively constant. Finally, there should be congruence between legal norms and the actions of officials operating under the law (Fuller 1969a, pp. 46–91; Murphy 2005, pp. 240–1) and, as a result, a ‘stable reciprocity of expectations between lawgiver and subject’ (Fuller 1969a, p. 209). Prominent legal theorists have suggested that Fuller’s criteria of legality are purely about efficacy (Raz 1979, pp. 223–6; Hart 1983, p. 350). Rationalist international relations (IR) scholars too are likely to argue that all that the criteria of legality do is to signal clearly how agents should behave. On this reading, law simply enables the efficient functioning of society by sending coherent signals that make interaction predictable. Participation in such a system is rational because an individual agent is benefited by both the possibility of exchange in material interests and predictability in relationships (Simmons 2000). Reciprocity in this rationalist sense is also a common explanation given by international lawyers for the existence of legal norms. Rosalyn Higgins argues that there is no point in searching for an explanation of obligation; international law functions on the basis of reciprocal obligations rooted in interests (Higgins 1994). Other legal theorists have looked to a type of systemic reciprocity flowing from the long-term interests of states in the predictability provided by law (Henkin 1979; Chayes and Handler Chayes 1995). As part of a surge of rationalist explanations of international law by North American scholars, Andrew Guzman has argued that, along with reputation and retaliation, reciprocity explains why states comply with international law even in the absence of coercive enforcement mechanisms (Guzman 2008). We believe that reciprocity is deeper than the exchange flowing from the calculation of material interests (Brunnée and Toope 2010, pp. 37–42). When actors in the system believe that all interactions are shaped by reciprocal commitment to the criteria of legality, law will tend to attract its own adherence – an internalized sense of ‘obligation’ will have been created. Hence the criteria of legality are not merely signals but are conditions for the existence of law. Only when these conditions are met and when, as we are about to describe, they are upheld by a community of legal practice, can we imagine actors feeling obliged to shape their behaviour in the light of the promulgated rules. The Practice of Legality In international society, the deeper sense of reciprocity that we have just described is even more salient because states are subjects, law-makers (Scelle 1956) and administrative agencies all at once (Waldron 2006). Because obligation depends in large part upon the reciprocity or

244  Handbook on global constitutionalism mutuality of expectations among participants in the legal system – a reciprocity that is collectively built and maintained – it exists only when international legal practices are ‘congruent’ with existing norms and the requirements of legality. The idea of communities of practice (Wenger 1998; Adler 2005), therefore, rounds out our understanding of the relationship between law and shared understandings. The key point is that interactional law does not arise simply because a community of practice has grown around a given issue or norm. Only when this community is engaged in a practice of legality, can shared legal understandings, be they procedural or substantive, modest or ambitious, be produced, maintained or altered. We suggest that there exist multiple, overlapping communities of legal practice. An overarching community of practice maintains basic substantive (for example, sovereignty and sovereign equality) and procedural (for example, rules governing treaty-making) background norms, as well as understandings concerning the requirements of legality that we discussed previously. More particularized communities grow within specific issue areas, for example, in the context of treaty regimes such as the climate regime or the World Trade Organization (Brunnée and Toope 2011). Another important point is underscored by focusing on the role of communities of practice that ‘cut across state boundaries and mediate between states, individuals and human agency, on the one hand, and social structures and systems, on the other’ (Adler 2005, p. 15). For our purposes, the central insight is that it is not enough to cast socially shared understandings in legal form; they cannot simply be ‘posited’. Positive law can be an element of interactional law, often an important element, but it is not necessarily coextensive with it. The communities of practice concept instructs that positive law is a method of ‘fixing’ legal understandings – a function that is particularly important in large, diffuse societies. It may also assist in meeting requirements of legality, such as promulgation, clarity, transparency, or predictability (Brunnée and Toope 2010; Hurd 2015). However, without sufficiently dense interactions between participants in the legal system, positive law will remain, or become, dead letter. Perhaps most importantly, the salient interactions must be of a specific kind. They must constitute a practice of legality – norm application (for example, legal argumentation, interpretation, implementation or enforcement measures) that meets the requirements of legality. The interactional account also highlights, then, that the mere declaration of common values in formal law can be deceptive. Without a community of legal practice built around and upholding criteria of legality (Brunnée and Toope 2010, p. 69), supposed shared values will remain lofty rhetoric. Yet, for a community of practice around international legal norms to emerge, it is not necessary to imagine the existence of a homogenous ‘international community’ sharing a common ‘life world’ (Habermas 1989), vision or definition of ‘the good life’. A community of practice requires only that members ‘must share collective understandings’ of ‘what they are doing and why’ (Adler 2005, p. 22). It is not necessary, then, to have a morally cohesive ‘community’ before law-making is possible. A community of legal practice must only share a common understanding of the requirements of legality and engage in a practice of legality. As we will detail in our discussion of the nascent global rule of law below, the fact that the requirements of legality are ‘formal’ or ‘procedural’, rather than ‘substantive’ in nature is particularly important in the context of global society. They allow one to imagine and build up a community of legal practice that is congenial to diversity but also permits and encourages the gradual increase of global interaction and deeper normative convergence (Brunnée and Toope 2010, pp. 43–5, 77–82).

Interactional legal theory, the international rule of law and global constitutionalism  245

CIRCULAR CONCEPTIONS OF LAW AND CONSTITUTIONALISM Linear theories of law trace ‘authority’ and ‘legitimacy’ back to an originating source of law. In Mark Walter’s evocative phrase, law is ‘held up by a string’ (Walters 2016, p. 33). The traditions of natural law fit this description because the source of law is the deity or reason. All law reaches back to the external morality created through divine revelation or right thinking. However, linearity is also characteristic of legal positivism, and it tends as well to undergird the legal conceptions of IR realists. Although for various types of positivists the source of law is described differently, there is always a source and – what matters for present purposes – the source is outside law itself. For John Austin, the source of law was the power of the unconstrained sovereign (Austin 1879[2002], lecture 1). Hans Kelsen described his ‘grundnorm’ simply as a logical postulate (Kelsen 1967, p. 202), while H.L.A. Hart argued that it is a social fact constituted through official practice that he called a ‘rule of recognition’ (Hart 1994, ch. 6). The idea that law is ultimately justified by a source outside itself makes any form of legal constitutionalism difficult to sustain. Yet constitutionalism is often thought of as ‘government established by law and limited by law from exercising arbitrary power’ (Walters 2016, p. 37). How can government be established ‘by law’ if law itself is established by something other than law? It cannot, which is the basis of the theory of ‘political constitutionalism’, represented today by proponents such as Jeremy Waldron. Waldron argues that it is democratic principles that legitimate a legal order; these principles fall outside law, so the constitution is a political, not a legal construct (Waldron 2006, p. 18). The fundamental question for all constitutions, on this theory, is, what ‘people’ serves as the source of authority, or constituted power? As David Dyzenhaus argues: ‘political constitutionalists and legal positivists seem committed to the claim that the legal constitution is ultimately a formal one – one that consists only of formal authorization rules’ (Dyzenhaus 2016, p. 16). There are no substantive commitments, no matter how thin. ‘Authority’ and ‘legitimacy’ are merely expressions of right process within law, finding their ultimate justification in external political morality, the justification of a people’s agreement to be governed. A similarly linear move is made by realists who perhaps unwittingly support a view of constitutionalism close to that of Carl Schmitt. Schmitt famously argued that the sovereign has unbounded power to throw off ordinary law in cases of emergency or exception: ‘Sovereign is he who decides on the exception’ (Schmitt 2005, p. 5). Realists share this form of positivist linearity, where again authority is rooted outside law, in the ability to escape the application of law through the exercise of material power. When constitutional authority, be it the sovereign or the people or some other source, is traced to an origin outside of law, as it is in all linear theories, it is placed beyond the constraining influence of legality. This conception is a significant weakness of linear theories of law. We suggest that a more robust account of constitutionalism emerges from a ‘circular’ tradition of law, of which interactional international law forms a part. In this tradition, the constitution is a legal construct, not an instrument of material power or even of constitutive political power. The point is not that law is dominating as a discipline, but rather that the circular tradition allows both the constitution of authority and the disciplining of law, through the requirements of legality. This circular tradition is grounded in the ‘practical reasoning’ or ‘practical wisdom’ of Aristotle (Aristotle 1976, s. X:ix), wherein law is best understood as a discursive exercise, as

246  Handbook on global constitutionalism a form of rhetoric that is purposive, not merely descriptive of fact, and inherently connected to argument. This rhetorical tradition in law was further influenced by the secular humanists of the Enlightenment, thinkers such as Giambattista Vico, who argued that many of life’s important conundrums are simply not amenable to dualistic Cartesian analysis. Instead, life’s challenges call for creativity in drawing analogies and in finding similarities among seemingly different elements, thereby creating new understandings of reality. This process is the mature exercise of judgement or practical reason, a demonstration of prudence in the light of experience (Mootz 2008, p. 1282). In parallel, the discursive tradition found rich expression in the evolution of the common law of England. Here, too, truth is not a data point to be ‘discovered’ in the material world, or even in explicit texts, but is emergent in the interplay between fact and reason: the drawing of analogies from parallel practices and the working out of complex ideas through argument. As Walters notes, quoting a seventeenth-century treatise on legal method: ‘Answers in difficult cases were found through an interpretive oscillation between law “in concreto” and law “in abstracto”, a movement “from the particular to the speciall” and then “from the speciall to the general”’ (Walters 2016, p. 35). The circularity of law is expressed as a ‘network of interlocking strands of normative value that bend back upon themselves, never reaching an end’ (Walters 2016, p. 34). All law, including the constitution itself, is created and refined, shifted and reinforced, through continuing practices of contestation, interpretation, application and enforcement. These practices are themselves shaped, and what counts as ‘practical reason’ or ‘prudence’ is guided by ‘strands of normative value’, themselves subject to continuing debate and interpretation. This understanding of law founds a constitutionalism that is distinctively legal. The ‘basic norms of good governance … [are] immanent within law itself’ (Walters 2016, p. 47). In Fuller’s terms, they are the ‘internal morality of law’, what we prefer to call simply ‘criteria of legality’, grounded only in thin substantive commitments to relative autonomy and the need to foster communication. As well as providing a rich account of the rule of law, this legally focused construction of constitutionalism obviates the need to identify ‘constituent authority’ outside of law since law’s authority is provided by internal qualities ‘without which there is neither law nor authority’ (Dyzenhaus 2012, p. 233). Interestingly, Fuller actually made the same point in chiding his positivist critics for ‘falsification of reality’ by simply assuming the existence of law-making authority (Fuller 1969a, p. 148). A circular view of law and constitutionalism can also help explain how the division of powers can still be an element of constitutionalism even in a ‘horizontal’ system where actors are legislators, administrative agencies and judges all at once (Scelle 1956; Waldron 2006). Perhaps counterintuitively, although international law exhibits institutionalized separation of powers only in specific settings (for example, in certain international organizations such as the World Trade Organization), the internal requirements of legality that underpin international legal practice ensure that the same actors who make international law are subject to certain disciplines when they interpret it – when they occupy the role of decision-makers or ‘judges’, as it were (Dyzenhaus 2014). Thus, the rule of law, understood as a continuing practice of legality, contains within it implicit ‘separation of powers’, operationally if not structurally. It remains to be explored whether or not this circular view of law can support a constitutionalism transcending state borders. Is there a global rule of law that could give rise to robust constitutionalism in international society?

Interactional legal theory, the international rule of law and global constitutionalism  247

A GLOBAL RULE OF LAW? Although, as we have seen, originating concepts can be traced back to ancient Greece, the rule of law as we express it today – and the legality requirements that are commonly associated with it – were articulated in Europe, over the course of the Enlightenment (Tamanaha 2004). During the Protestant Reformation of the sixteenth century, a prior step towards the modern conception of the rule of law had been taken: law began to be decoupled from divine or natural justice. This decoupling coincided with the emergence of sovereign states (Bartelson 1995) looking to assert their powers through an emphasis upon the centrality of positive law. As ‘law’ came to be identified with state-made law, the Enlightenment’s turn to science and reason, combined with the rise of mercantilist liberalism, entailed demands for individual freedom and equality before the law (Tamanaha 2004, p. 39). A fully developed understanding of the rule of law emerged as European governments were called upon to protect a diversity of visions of ‘the good’ pursued by free and equal citizens (Tamanaha 2004, p. 35). Building on this tradition, it is no surprise that various articulations of the requirements of legality, including Fuller’s, are fundamentally concerned with enabling autonomous actors to pursue their diverse goals through law. At the same time, they seek to ensure that governing authorities act in accordance with the letter and spirit of existing laws (are ‘constrained’ by law). It is this context that reveals why reciprocity between citizens and government was at the core of Fuller’s conception of the rule of law (Fuller 1969a). That is, only when the law and its application meet the requirements of legality, will it be able to guide citizens’ decision-making, while at the same time limiting what governments can do through law. Is it possible to transpose a conception of the rule of law that emerged within nation states to protect the liberty and equality of individuals against governmental power to the international arena (Krisch 2012)? Moreover, even if such a transposition were possible, can an historically contingent and Eurocentric conception of the rule of law provide a foundation for a truly global rule of law (Reus-Smit 2011), let alone any form of global constitutionalism? The answer to the question whether or not it is possible to transpose a conception of the rule of law from the domestic to the international setting is multifaceted. Although Fuller’s canon of legality was concerned with constituting as well as limiting authority, he also articulated a broader conception, encompassing not only the disciplining of the legislative and executive functions, but also the shaping of other modes of legal ordering, including customary law and contractual relationships among legally equal actors (Fuller 1969a, 1969b[2011]). Moreover, because congruence and reciprocity are the pivot points for Fuller’s version of the rule of law, it provides a powerful insight for international law: even when a legal order appears to be hierarchical, it is in fact horizontal in important respects. This insight reveals how a horizontal order, which does not have the features commonly associated with domestic law, can still be a legal order.3 Also, precisely because states, as the still-dominant international actors, occupy multiple roles at once, transposing the concept of the rule of law to the international level is not only possible but necessary (Waldron 2006). In this setting, its operation is best understood 3 Fuller frequently used customary and international law as illustrations of his argument that horizontal forms of order could be law (Fuller 1969a, 1969b[2011]). He did, however, consider international society at the time to lack sufficient ‘community’ and international law to be insufficiently developed for certain legal forms to be appropriate means for resolving polycentric questions (Knop 2010).

248  Handbook on global constitutionalism broadly, as both enabling and constraining justification as well as contestation, rather than as concerned only with ensuring compliance or constraining authority (Hurd 2015; Kanetake and Nollkaemper 2016). This conception of the rule of law is also useful because it can accommodate the growing roles of individuals and other non-state actors in the international legal order. It sets out requirements that all actors must adhere to – and will be enabled and constrained by – if they are to engage in legal interaction. Furthermore, it recognizes that the various actors in international society constitute overlapping and sometimes contesting communities of practice. A final observation is in order: a basic reason of logic supports the argument that we can transpose a rule of law that emerged in nation states to the international setting. Although it is argued that we cannot compare states to individuals, this argument tends to reify states and to disconnect them from their social reality. States are, in their ambitions and actions, controlled by people. People, be they state leaders or international lawyers, experience interactions in international society that can induce social learning, reinforcing commitments to legality, just as they can in the domestic sphere. That is why individual autonomy and equality before the law in domestic law have equivalents in state sovereignty and sovereign equality at the international level (Brunnée and Toope 2010, pp. 34–6). Just as the rule of law is meant to protect diverse goals and outlooks of autonomous and equal actors in the domestic context, it must provide for analogous diversity at the international level. Indeed, deep diversity characterizes international society, and traditions of autonomy and equality are crucial to ensuring the cultural and political independence that contemporary international law seeks to uphold (Brunnée and Toope 2010, p. 82). Perhaps counter-intuitively, the need for a rule of law that can operate in today’s deeply diverse international society also helps explain why a conception that seems to be historically and culturally contingent could provide the foundation for a genuinely global rule of law, and even a nascent form of global constitutionalism. The requirements of legality that underpin our description of interactional international law are primarily formal in nature, or ‘procedural’, in Fuller’s terminology (Fuller 1969a, pp. 96–7). As we already noted, although these requirements constrain the ability of actors, including powerful actors, to proceed in arbitrary or entirely self-serving fashion, they do not themselves entail thick substantive commitments (Klabbers 2008; Luban 2010). They do, however, connect to conceptions of autonomy and the need to foster communication that constitute a set of ‘thin’ substantive commitments (Brunnée and Toope 2010, pp. 33, 35). A substantively thin conception of the rule of law built around formal requirements of legality and upheld by collective practices of legality is particularly suited to international society’s highly variegated political context. Nothing precludes actors from promoting substantive understandings in international law. Indeed, international law does include a stock of general and regime-specific substantive norms, including norms first promoted by weaker actors. Our point is merely that shared substantive commitments cannot be assumed to exist a priori (as most natural law approaches would insist), or enacted through ‘valid’ rules (as positivist approaches suggest). However, a thin international rule of law is possible and, arguably, its requirements are all the more important in the absence of shared substantive values and goals (Koskenniemi 1990), or as actors work towards shared substance. That is the very point of the rule of law, in domestic and international society. So far, we have suggested why a rule of law akin to what emerged from the European Enlightenment experience might be both practically useful and normatively desirable at

Interactional legal theory, the international rule of law and global constitutionalism  249 the international level. Now we want to go further and suggest that a modest but genuinely global rule of law, built around requirements and practices of legality, has in fact come to be embraced by international society, including by most of its non-Western members. This argument may seem audacious, given international law’s notorious colonial history (Anghie 2005; Pahuja 2011). Indeed, we want to be clear that we are not proposing a comfortable ‘progress’ narrative from a European-inspired domestic instantiation of the rule of law to international acceptance. The processes by which the international rule of law is coming into being are complex and, at different points, imposition preceded genuine interaction. The rise of modern sovereign states in Europe entailed a decisive turn to a positivist conception of the international legal order, one in which, initially, only existing (Western) states could participate (Koskenniemi 2002). European states used international law to retain their privileged positions, and to assert power over non-Western states and peoples, notably by withholding recognition from ‘non-civilized’ peoples and treating their territories and resources as free for the taking, through the legal doctrine of res nullius. The late nineteenth century, therefore, witnessed the geographical expansion of Western influence and the delivery of Eurocentric international legal rules to the world. In the early twentieth century, international law became global simply by virtue of the admission of the new states that met its membership requirements, but that is not the end of the story (Becker Lorca 2014). The projection of international law to the ‘periphery’ is certainly part of the origins of the international legal order, and the rule of law, as they operate today, but this account, as recent scholarship has carefully documented, overlooks the increasingly active role that non-Western international lawyers assumed in appropriating classical international law, and ‘transforming European international law into a universal regime’ (Becker Lorca 2014, p. 15). Rather than simply accepting international law as it stood, growing numbers of international lawyers from the ‘periphery’ studied international law in Europe, appropriated its discourse in order to exploit the avenues for resistance that it offered and, gradually, worked to change some of its core content. More than just an export item, international law became, in Becker Lorca’s powerful phrasing, a ‘mestizo’ legal order, a hybrid that emerged out of the ‘encounter between Western and non-Western worlds’ (Becker Lorca 2014, p. 23). One particularly powerful illustration of this aspect of international law’s history can be found in the gradual shifting and ultimate replacement of the criteria for statehood. Non-Western international lawyers and the states they represented first operated within the Eurocentric gatekeeper standard of ‘civilization’, working to show that their societies met the standard. Then, gradually, they worked to shift the standard, looking to establish that societies other than European-style states were in fact ‘civilized’ on their own cultural terms. This shift became the foundation for developing world international lawyers’ ultimate goal: fact-based criteria for statehood that were decoupled from standards of civilization. This formalist stance was enshrined in the Montevideo Convention (Becker Lorca 2014). Superficially, this approach suggests that the newly minted international lawyers of the developing world were ‘positivists’. However, it is likely that this positivism was a strategic appropriation. These ‘semi-peripheral international lawyers’ needed to reinforce a fragile sovereignty and to displace the assertion of universal (Christian) values emanating from Europe (Becker Lorca 2014). What is more, their positivism was not so much an uncritical acceptance of a particular legal theory, but rather an attempt to ‘assimilate international law into practical knowledge’, reconstructing European international law through interaction with domestic law shaped by local cultures (Becker Lorca 2014, p. 60).

250  Handbook on global constitutionalism The reference to practical knowledge is important, for it connects us back to the ‘communities of practice’ that are essential to the construction, maintenance and vitality of international law. Even though colonial international law was fundamentally positivist, the Enlightenment tradition also brought with it the commitments to legality that ground a non-positivist understanding of international legal practice. Legality requirements such as generality, transparency and consistency all afford opportunities to weaker actors today (as with the early non-European developing states) to challenge the strong and to work through law to promote diverse perspectives and interests. They may facilitate efforts to shift shared understandings over time, giving rise to more assertive substantive law (Brunnée and Toope 2010). Other scholars have identified this capacity of international law to provide space for contestation but have seen the empowerment as distinctly limited (Koskenniemi 1990). Our understanding of the ‘space’ provided by law is more encompassing, being rooted in a culture of legality, not merely a culture of formalism (Brunnée and Toope 2017). Today, we can see limited legality requirements as reaching around the globe, through the past efforts of ‘semi-peripheral international lawyers’ and their allies. While it is true, therefore, that notions of the rule of law are historically contingent, it is noteworthy that they have been globally influential and have shown remarkable resilience. Albeit in different ways and to different extents, international law’s most important law-making modes, including customary, treaty and certain soft law-making processes, are all underpinned by the requirements of legality (Brunnée 2017). A clear example is the almost universal agreement on the rules of treaty law, which are tightly intertwined with legality requirements, as encapsulated in the Vienna Convention on the Law of Treaties (Brunnée and Toope 2010). Although, treaty law allows individual states more room than customary law for ‘tailoring their legal obligations’ (Hurd 2015), many treaty law devices, such as entry-into-force, reservations, amendment or withdrawal regimes, tend to be designed so as to minimize checker boarding as much as possible and to promote generality of treaty obligations.

CONCLUSION The interactional theory of international law, linking to circular understandings of law and revealing the fundamental role of criteria of legality in buttressing a robust practice of legality, points the way to a legally focused understanding of constitutionalism that could potentially be built in international society. In treating the rule of law as the fundamental component of constitutionalism, we reduce the need to find an inclusive political community to justify constitutionalism. Communities of legal practice require only agreement on the need for law, and shared commitment to criteria of legality. This is a distinct advantage in a profoundly diverse international society. Of course, one cannot presume even the agreement on a need for law. Assertions of almost unconstrained sovereignty and states’ ‘rights’ to use force, despite the express terms of the UN Charter, are rife amongst contemporary authoritarian regimes ranging from Myanmar to Eritrea, from Venezuela to Russia. Resisting this understanding of IR remains an urgent task. We also show how a limited version of the separation of powers can exist through the legality requirements that shape internalized role differentiation in international actors. Conceptions of law are historically contingent. However, the thin substantive commitments required by the criteria of legality and by interactional international law have been widely

Interactional legal theory, the international rule of law and global constitutionalism  251 embraced as international law has been transformed over the last century from a purely Eurocentric law to a mestizo law, reshaped by the intentional acts and arguments of developing world lawyers and their allies. This mestizo law, as it is continuously upheld and changed through the work of communities of legal practice, could help to build a stronger form of constitutionalism than currently exists in international society. That trajectory is, however, by no means assured as recent events on the eastern borders of Europe have shown with distressing clarity.

REFERENCES Adler, E. (2005), Communitarian International Relations: The Epistemic Foundations of International Relations, Abingdon: Routledge. Anghie, A. (2005), Imperialism, Sovereignty and the Making of International Law, Cambridge: Cambridge University Press. Aristotle (1976), [The Nicomachean] Ethics, trans. J.A.K. Thomson, Harmondsworth: Penguin. Austin, J. (1879), Lectures on Jurisprudence, or The Philosophy of Positive Law, 2 vols, revd R. Campbell (ed.) (2002), 4th edn, Bristol: Thoemmes Press. Bartelson, J. (1995), A Genealogy of Sovereignty, Cambridge: Cambridge University Press. Becker Lorca, A. (2014), Mestizo International Law: A Global Intellectual History 1842–1933, Cambridge: Cambridge University Press. Brunnée, J. (2017), ‘The sources of international environmental law: An interactional account’, in S. Besson and J. D’Aspremont (eds), The Oxford Handbook on the Sources of International Law, Oxford: Oxford University Press. Brunnée, J. and S.J. Toope (2010), Legitimacy and Legality in International Law: An Interactional Account, Cambridge: Cambridge University Press. Brunnée, J. and S.J. Toope (2011), ‘Interactional international law and the practice of legality’, in E. Adler and V. Pouliot (eds), International Practices, Cambridge: Cambridge University Press, pp. 108–35. Brunnée, J. and S.J. Toope (2017), ‘The rule of law in an agnostic world: The prohibition on the use of force and humanitarian exceptions’ in W. Werner, M. De Hoon and A. Galán (eds), The Law of International Lawyers: Reading Martti Koskenniemi, Cambridge: Cambridge University Press, pp. 137–66. Brunnée, J. and S.J. Toope (2023), ‘The authority of international law’, in E. Benvenisti and D. Kritsiotis (eds), Cambridge: Cambridge University Press. Chayes, A. and A. Handler Chayes (1995), The New Sovereignty: Compliance with International Regulatory Agreements, Cambridge, MA: Harvard University Press. Dyzenhaus, D. (2012), ‘Constitutionalism in an old key: Legality and constituent power’, Global Constitutionalism, 1 (2), 229–60. Dyzenhaus, D. (2014), ‘Hobbes on the international rule of law’, Ethics & International Affairs, 28 (1), 53–64. Dyzenhaus, D. (2016), ‘The idea of a constitution: A plea for Staatsrechtslehre’, in D. Dyzenhaus and M. Thorburn (eds), Philosophical Foundations of Constitutional Law, Oxford: Oxford University Press, pp. 9–32. Fuller, L.L. (1969a), The Morality of Law, revd edn, New Haven, CT: Yale University Press. Fuller, L.L. (1969b), ‘Human interaction and the law’, American Journal of Jurisprudence, 14 (1), 1–36, reprinted in K.I. Winston (ed.) (2011), The Principles of Social Order: Selected Essays of Lon L. Fuller, revd edn, Oxford: Hart, pp. 211–46. Guzman, A.T. (2008), How International Law Works: A Rational Choice Theory, Oxford: Oxford University Press. Habermas, J. (1989), Theory of Communicative Action, Vol. 2: Lifeworld and System, trans. T. McCarthy, Boston, MA: Beacon Press. Hart, H.L.A. (1983), Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press.

252  Handbook on global constitutionalism Hart, H.L.A (1994), The Concept of Law, 2nd edn, Oxford: Oxford University Press. Henkin, L. (1979), How Nations Behave: Law and Foreign Policy, 2nd edn, New York: Columbia University Press. Higgins, R. (1994), Problems and Process: International Law and How We Use It, Oxford: Clarendon Press. Hurd, I. (2015), ‘The international rule of law and the domestic analogy’, Global Constitutionalism, 4 (3), 365–95. Kanetake, M. and A. Nollkaemper (2016), ‘The international rule of law in the cycle of contestation and deference’, in M. Kanetake and A. Nollkaemper (eds), The Rule of Law at the National and International Levels: Contestation and Deference, Oxford: Hart, pp. 445–60. Kelsen, H. (1967), Pure Theory of Law, trans. M. Knight (2009), Clark, NJ: Lawbook Exchange. Klabbers, J. (2008), ‘Constitutionalism and the making of international law: Fuller’s procedural natural law’, No Foundations, 5, 84–112. Knop, K. (2010), ‘The Hart-Fuller debate’s silence on human rights’, in P. Cane (ed.), The Hart-Fuller Debate in the Twenty-first Century, Oxford: Hart, pp. 61–78. Koskenniemi, M. (1990), ‘The politics of international law’, European Journal of International Law, 1 (1), 4–32. Koskenniemi, M. (2002), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge: Cambridge University Press. Krisch, N. (2012), ‘Legitimacy and Legality in International Law: An Interactional Account by Jutta Brunnée and Stephen J. Toope (book review)’, American Journal of International Law, 106 (1), 203–9. Luban, D. (2010), ‘The rule of law and human dignity: Reexamining Fuller’s canons’, Hague Journal on the Rule of Law, 2 (1), 29–47. Mootz, F.J. (2008), ‘Vico’s “ingenious method” and legal education’, Chicago-Kent Law Review, 83 (3), 1261–302. Murphy, C. (2005), ‘Lon Fuller and the moral value of the rule of law’, Law and Philosophy, 24 (3), 239–62. Pahuja, S. (2011), Decolonizing International Law: Development, Economic Growth and the Politics of Universality, Cambridge: Cambridge University Press. Postema, G.J. (1994), ‘Implicit law’, Law and Philosophy, 13 (3), 361–87, reprinted in W.J. Witteveen and W. van der Burg (eds) (1999), Rediscovering Fuller: Essays on Implicit Law and Institutional Design, Amsterdam, Amsterdam University Press, pp. 255–75. Raz, J. (1979), The Authority of Law, Essays on Law and Morality, Oxford: Clarendon Press. Reinold, T. and M. Zürn (2014), ‘“Rules about rules” and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making’, Global Constitutionalism, 3 (2), 236–73. Reus-Smit, C. (2011), ‘Obligation through practice’, International Theory, 3 (2), 339–47. Scelle, G. (1956), ‘Le Phénomène Juridique du Dédoublement Fonctionnel’ (‘The juridical phenomenon of role splitting’), in W. Schätzel and H.-J. Schlochauer (eds), Rechtsfragen der internationalen Organisationen: Festschrift für Hans Wehberg zu seinem 70. Geburtstag, Frankfurt: Klostermann, pp. 324–42. Schmitt, C. (2005), Political Theology: Four Chapters on the Concept of Sovereignty, trans. G. Schwab, Chicago, IL: University of Chicago Press. Searle, J.R. (1995), The Construction of Social Reality, New York: Free Press. Simmons, B. (2000), ‘The legalization of international monetary affairs’, International Organization, 54 (3), 573–602. Tamanaha, B.Z. (2004), On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press. Waldron, J. (2006), ‘The rule of international law’, Harvard Journal of Law & Public Policy, 30 (1), 15–30. Walters, M.D. (2016), ‘The unwritten constitution as a legal concept’, in D. Dyzenhaus and M. Thorburn (eds), Philosophical Foundations of Constitutional Law, Oxford: Oxford University Press, pp. 33–52. Wenger, E. (1998), Communities of Practice: Learning, Meaning, and Identity, Cambridge: Cambridge University Press.

18. The shifting relationship between functionalism and global constitutionalism Jeffrey L. Dunoff

What is the relationship between functionalism and global constitutionalism? The question does not admit of a straightforward answer, because each term is used in a diversity of ways, and because the relationship has shifted over time. Nonetheless, functionalism and functionalist approaches continue to play important roles in debates over the possibility, significance and normative desirability of global constitutionalism. To better understand the state – and the stakes – of the encounter between functionalism and global constitutionalism, this chapter reviews the most important and influential ways that scholars have approached this relationship. First, during the inter-war and post-war years, functionalism and constitutionalism were commonly understood as antagonists. Specifically, the term ‘functionalism’ in international relations theory denoted a particular strategy of international cooperation and organization that stood in opposition to constitutionalist approaches. For champions of this strategy, functionalism also served as a normative account of international organization superior to constitutionalist strategies of cooperation (Mitrany 1948, 1971, 1975). Over time, however, the meaning of functionalism changed and the term came to be associated with a methodology or approach thought to be useful in illuminating the purposes or functions of constitutional norms and structures. This version of functionalism has been highly influential in recent decades in studies of both global constitutionalism and comparative constitutionalism. As used in these writings, functionalism is less a mode of organizing international cooperation than an analytic tool that scholars can use to identify, analyze and critique different constitutional orders. Much more recently, functionalism has begun to be used in yet another sense, to describe a particular form of ‘functional constitutionalism’ (Isiksel 2016). In these writings, most developed in the context of European Union (EU) studies, functionalism is seen as a distinctive feature or style of post-national constitutional orders. As is evident, these differing approaches to the relationship between functionalism and constitutionalism reflect, in part, differing conceptualizations of ‘functionalism’.1 More relevant to this Handbook, however, these shifts also reflect differing preoccupations of those who study constitutionalism beyond the state. Hence this chapter can be read not only as a typological account of the shifting relationship between ‘functionalism’ and ‘constitutionalism’, but also as an initial, albeit necessarily incomplete, intellectual history of the encounter

1 The term, of course, is widely used in different disciplines, and has taken on many different shades of meaning. For discussions of functionalism in anthropology, see, for example, Malinowski (1944); in sociology, see, for example, Parsons (1951); in cognitive science, see Block (1980); in literary criticism, see, for example, Iser (1975). For the use of the term in international relations, see, for example, Groom and Taylor (1975). In international law, the term is often used in the context of international organizations law, see, for example, Klabbers (2015).

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254  Handbook on global constitutionalism between these two concepts that outlines an important trajectory in the scholarly literature. While this intellectual history is useful as a heuristic device, it is important to emphasize that this account should not be confused with an evolutionary claim. In particular, more recent and newly developing approaches to the relationship between functionalism and constitutionalism should not be understood as replacing or subsuming previous approaches. To the contrary, at least some of the competing conceptualizations of functionalism and constitutionalism can coexist simultaneously, since they do not necessarily contradict, and can even complement and enrich, each other. Indeed, we might even view the various iterations of the relationship between functionalism and constitutionalism as a set of separable but mutually reinforcing frames through which to approach many of the debates over global constitutionalism explored throughout this Handbook.

FUNCTIONALISM AND CONSTITUTIONALISM AS OPPOSING STRATEGIES FOR ADVANCING INTERNATIONAL COOPERATION As the contributions to Part I of this Handbook demonstrate, debates over the appropriate locus of political authority, and the appropriate constitutional constraints on that authority, are hardly new. With the increasing dominance of the nation-state from the sixteenth century onwards – and particularly with the successes of the eighteenth-century French and American constitutions – constitutional discourse became almost exclusively embedded within a statist paradigm. By the mid- and late-twentieth century, however, the statist paradigm came under increasing stress. Growing interdependence and the development of new international bodies raised pressing questions about the best institutional designs and strategies for promoting international cooperation. Over the next decades, a complex and uneven relocation of political authority away from states and towards international bodies, networks and non-state actors gave rise to new questions, explored elsewhere in this Handbook, regarding how best to organize and control inter-, supra-. trans- and post-national systems of governance. For current purposes, however, the story of the uneasy relationship between functionalism and global constitutionalism begins in the immediate post-World War II era, when arguments about the relationship of constitutionalism and functionalism took a very particular form. Important triggering events in this narrative are the drafting and entry into force of the United Nations Charter and the treaty creating the European Coal and Steel Community. The Charter and the new United Nations organization were immediately and widely understood in constitutional terms. For example, in his speech to the final session of the San Francisco Conference, US President Harry S. Truman repeatedly analogized the Charter to the US Constitution (Truman 1945), and the United Nations’ (UN’s) first General Counsel and Director of the Legal Department characterized the Charter as ‘the constitutional instrument which governs the organizational structure of a world community’ (quoted in Fassbender 2009, p. 3). Contemporaneous scholarly and popular writings also frequently employed constitutional terminology.2 In a nutshell, this view of the new organization held that: See, for example, Claude Jr. (1964) discussing ‘constitutional interpretation and development’ and ‘areas of constitutional controversy and change’ at the UN. It is important to note, however, that many observers (then and now) rejected the constitutional characterization, claiming, for example, that ‘it 2

The shifting relationship between functionalism and global constitutionalism  255 The UN Charter establishes a general, multipurpose organization. It also affirms the legally binding quality of key rules for international state conduct, among them principles of nonintervention, peaceful settlement of disputes, decolonization, respect for human rights, the sovereign equality of states, and the duty of cooperation. But the Charter goes far beyond being a statement of agreed principles and rules. It actually authorizes the creation of an elaborate system of major organs and subsidiary agencies, numerous committees and commissions, and a nexus of cooperation between the central body and a network of specialized agencies, regional organizations, and nongovernmental organizations throughout the world. The UN Charter furnishes the fundamental constitutional law for operating the only general purpose, near-universal organization operating in the world today. (Joyner 1997, pp. 435–6, emphasis added)

The constitutionalist understanding of the UN, which celebrated the UN’s general, multipurpose ambit, was contrasted with ‘functional’ approaches to international cooperation. Perhaps the most influential statement of this opposition can be found in the writings of David Mitrany, who explicitly argued for the normative superiority of a ‘functional’ approach to international cooperation as opposed to a ‘political-constitutional’ approach (Mitrany 1948, 1971, 1975). Like those who endorsed constitutional conceptions of the UN, Mitrany understood that increasing interdependence required the creation of new forms of transnational politics and organization. However, Mitrany believed that comprehensive efforts at international cooperation, such as efforts to create ‘world government’, ‘world federation’ or any other ‘comprehensive and closed political system’ were overly ambitious and doomed to fail (Mitrany 1971, p. 533). Mitrany argued, instead, that international cooperative efforts should address discrete, narrow transnational issues, such as disease control or allocation of the broadcast spectrum, where specialized, technical knowledge could promote international cooperation and increase social welfare. Mitrany believed that this ‘functional’ strategy would ‘cut … across existing political ideological, geographical and racial divisions, without in the process breeding fresh distinctions and divisions of its own’ (Mitrany 1971, p. 538). Moreover, he thought that if states began to transfer responsibilities over specific issues to international bodies, and if those bodies were successful, over time citizens would become less attached emotionally to their national governments. He further believed that these successes would create new bonds and interdependencies among peoples, which would both enhance welfare and reduce the risks of war, leading over time to a ‘working peace system’ (Mitrany 1966, p. 92). Thus, for Mitrany: It is not necessary, and in a way not desirable that functional links should cover the whole range of international activities. To lay the basis for a peaceful international community it should be enough if, gradually, those activities were brought under joint control which concern the essential needs of the peoples at large; and, of course, those which by their nature are a threat to general security. Whereas with the present ways of ‘planned’ controls of economic and social life, the seeming success in covering the whole field and the whole range internationally would in fact tend to a totalitarian concentration, inevitably distant and heavy-handed, and so difficult to maintain in willing co-operation. (Mitrany 1971, p. 541)

Thus, practical and normative reasons lead Mitrany to call for a ‘turn to a functional approach to build up an international community, to tackle concrete problems’ and to reject ‘spectacular attempts at world constitution-making’ (Mitrany 1965, p. 134).

would not be accurate to describe the UN Charter as “the constitution” of the international community’ (de Wet 2006, p. 54).

256  Handbook on global constitutionalism The view that functionalism and constitutionalism were mutually exclusive would, for several reasons, over time fade from prominence. First, as the understanding of the UN as a constitutional order lost currency, there was no longer a need to advocate for a competing vision of international cooperation.3 Second, Mitrany’s version of functionalism was largely appropriated (as well as critiqued and revamped) by scholars working in the field of European integration. Haas and others eventually transformed Mitrany’s functionalism into an approach called neo-functionalism, which argued that social actors would shift their political energies to supranational institutions, which, in turn, would supply coordinative solutions. Successful efforts, under this view, would produce ‘spillover’ effects, as shrewd political actors would realize that they could better pursue their goals through European, as opposed to domestic, politics and would push to extend supranational policy-making to new domains.4 Nevertheless, the opposition between functionalism and constitutionalism did not entirely disappear from the scholarly literature. For example, in a widely cited 1974 paper, Gardner argued for ‘the functional approach to world order’ in terms strikingly reminiscent of Mitrany’s: The hope for the foreseeable future lies, not in building up a few ambitious central institutions of universal membership and general jurisdiction as was envisaged at the end of the last war, but rather in the much more decentralized, disorderly and pragmatic process of inventing or adapting institutions of limited jurisdiction and selected membership to deal with specific problems on a case-by-case basis, as the necessity for cooperation is perceived by the relevant nations. (Gardner 1974, pp. 558, 573)

The opposition also continues to appear in writings on the law of international organizations. For example, Klabbers argued that the law of international organizations ‘emanate[s] from two contending theories’, functionalism and constitutionalism, and proceeds to ‘pit the two against each other’ (Klabbers 2011, p. 1). Despite these and other writings, as a general matter the conceptualization of functionalism and constitutionalism as antagonists generally faded, and the two concepts would be understood in a quite different configuration in debates over global constitutionalism and comparative constitutionalism, to which we will now turn.

That said, this view never totally disappeared, and would periodically find expression in scholarly works and judicial writings. For a sampling, see, for example, Doyle (2009), Fassbender (1998), Advisory Opinions and Orders of the International Court of Justice, Voting Procedures on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, 1955 I.C.J. 67, 106 (June 7) (Lauterpacht, J., sep. op.) (‘A proper interpretation of a constitutional instrument must take into account … its [that is, the Charter’s] operation in actual practice and in the light of the revealed tendencies in the life of the Organization.’); International Status of South West Africa, 1950 I.C.J. 128, 186, 187 (July 11) (de Visscher, J., dissenting) (‘a treaty of a constitutional character like the United Nations Charter’). 4 For an overview of the enormous literature on neo-functionalism and European integration, see Sandholtz and Stone Sweet (2012) and Schmitter (2004). 3

The shifting relationship between functionalism and global constitutionalism  257

FUNCTIONALISM IN DEBATES OVER GLOBAL CONSTITUTIONALISM AND COMPARATIVE CONSTITUTIONALISM By the 1990s and early 2000s, leading conceptualizations of the relationship between functionalism and constitutionalism had evolved considerably. In two separate and rapidly expanding literatures – global constitutionalism and comparative constitutionalism – functionalism came to be seen as a fruitful analytic tool for describing, analyzing and critiquing constitutionalism. We briefly describe each of these literatures, in turn. Global Constitutionalism The 1990s saw an intensification of constitutional discourse at many transnational sites of governance, including particularly the EU and the World Trade Organization (WTO). This development, in turn, arose out of two related, and reinforcing, trends. The first was globalization, or the increased flow of people, goods, capital, services and ideas across national borders. Heightened cross-border flows increased demand for certain types of international law, including prominently international economic law, which in turn (generally) facilitated even more trade in goods, services, capital, and so on. At roughly the same time, scholars and others began to highlight the ‘fragmentation of international law’ (Koskenniemi and Leino 2002). This refers to the fact that international law is made in a highly decentralized manner, often in specialized regimes, such as trade, human rights, investment, environment, and so on. Each of these differentiated areas of law has its own treaties, principles, and institutions. However, the values and interests advanced by any particular regime are not necessarily consistent with those advanced by a different specialized regime. As specialized law-making in any particular regime tends to be relatively insulated from developments in other regimes, this ‘system’ risks inconsistencies, and potentially conflicting jurisprudence and legal uncertainty (see, for example, Koskenniemi and Leino 2002). Both individually and together, these developments sparked enormous interest in global constitutionalism, which many viewed as a way of introducing hierarchy and order – or at least a set of coordinating mechanisms – into an otherwise fragmented and plural international legal order. Many contributions to the global constitutionalism literature devoted substantial attention to the problem of defining terms such as ‘constitutional’ and ‘constitutionalism’ in the international context – one example of the ‘problem of translation’ encountered in transposing ideas and concepts developed in the domestic context to the international domain (Walker 2003). Some authors adopted normatively ‘thick’ definitions that placed great weight on elements such as separation of powers, rule of law, and, particularly, fundamental rights (see, for example, Paulus (2009), p. 69). These definitions, in turn, sparked concerns that familiar domestic constitutional arrangements were inappropriately being used as the baseline for international variants of constitutionalization and, over time, many exchanges over global constitutionalism were perceived to be excessively focused on definitional and terminological issues, with reasoned argument often displaced by definitional fiat. In response, several scholars sought to sidestep the definitional quagmire and instead ‘develop a functionalist approach to identifying and analyzing international constitutionalization’ (Dunoff and Trachtman 2009, pp. 1, 9). For example, Dunoff and Trachtman developed a ‘functional approach’ focused on the purposes that international constitutional norms are

258  Handbook on global constitutionalism intended to serve. They identified three core functions: ‘(1) enabling the formation of international law (i.e., enabling constitutionalization), (2) constraining the formation of international law (i.e., constraining constitutionalization), and (3) filling gaps in domestic constitutional law that arise as a result of globalization (i.e., supplemental constitutionalization)’ (Dunoff and Trachtman 2009, p. 10).5 These functions are complemented by a set of seven mechanisms through which the functions are commonly implemented: ‘(1) horizontal allocation of authority, (2) vertical allocation of authority, (3) supremacy, (4) stability, (5) fundamental rights, (6) review, and (7) accountability or democracy’ (Dunoff and Trachtman 2009, p. 10). Related functionalist approaches were developed by other scholars; indeed, one comprehensive review of writings in this area concluded that functionalist approaches constitute one of the two leading approaches found in the literature.6 For example, Peters argues that, although no formal international constitution exists, certain international norms fulfill ‘constitutional functions’. Specifically, she identifies several fundamental norms that serve as substitutes for the de-constitutionalization at the domestic level produced by globalization (see, for example, Peters 2006).7 Similarly, Zemanek undertakes a ‘functional analysis’ of the UN Charter. After noting that the Charter lacks a well-developed system of separation of powers or compulsory judicial review, he rejects the claim that the Charter serves as a constitution for the international community (Zemanek 2012, p. 25). Relatedly, scholars have increasingly used functionalist approaches to analyze important concepts central to debates within the global constitutionalism literature. By way of example, Thornhill developed a functionalist approach to constituent power. He argues that, in conjunction with constitutional rights, constituent power has always acted not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain (Thornhill 2012). Functionalist approaches have several virtues. First, unlike definitional approaches, which often mistakenly suggest that international constitutionalism is an ‘all or nothing’ affair, the functionalist approach makes clear that constitutionalism consists of a type – rather than a quantum – of rules. Second, in rejecting a ‘check list’ approach that seeks to identify a set of necessary and sufficient conditions for determining whether an international order is constitutionalized or not, functionalist approaches productively shift scholarly attention from terminological squabbles to substantive analysis. Finally, in decentering the normative commitments often associated with definitional approaches to constitutionalism, functionalist approaches recognize a wide variety of potential constitutional orders, and thus open the door to more pluralist understandings of international constitutionalism (for influential accounts of constitutional pluralism, see, for example, Walker 2002; Kumm 2009, p. 258; Stone Sweet 2012). On the other hand, some critics wonder if the ‘normative desaturation’ associated with functional approaches ‘masks the stakes of the debate’ by obscuring the (inevitable) normative

5 Tomuschat similarly refers to constitutional norms as ‘meta-rules’, or ‘rules on how the bulk of other rules are produced, how they enter into force, how they are implemented and who, in case of difference over their interpretation and application, is empowered to settle an ensuing dispute’ (1993, p. 216). 6 In his review of the literature, Kleinlein (2012) argues that the majority of writings on international constitutionalism focuses either on the separation of international law from state will or on claims that the international legal order fulfills or complements constitutional functions. 7 See, for example, Peters (2006). This compensatory constitutionalism is quite similar to what Dunoff and Trachtman identify as ‘supplemental constitutionalism’ (2009, pp. 14–18).

The shifting relationship between functionalism and global constitutionalism  259 commitments associated with functional approaches (see, for example, Lang 2012; Albert 2012). For current purposes, the ultimate merits of a functionalist approach to global constitutionalism are of less import than three other observations. First, functionalist approaches to global constitutionalism are substantively indeterminate. That is, they can lead to a wide variety of conclusions regarding the presence or absence of constitutionalization on the international plane. Thus, adopting a functionalist perspective leads Peters to identify international norms that serve to advance ‘compensatory constitutionalism’, while Zemanek’s functionalist approach leads him to deep skepticism regarding the UN Charter’s constitutional features. Similarly, Dunoff and Trachtman, who writing together developed a widely cited functionalist approach, reach radically different conclusions regarding the WTO’s constitutional attributes and status when writing individually (Dunoff 2006; Trachtman 2006). Second, functionalist approaches typically do not explicitly position themselves in opposition to or competition with other methodological and theoretical approaches found in the global constitutionalism literature. Indeed, we could embrace, say, a feminist or realist orientation to global constitutionalism, and still employ a functionalist approach. Instead, ‘functionalists’ tend to position themselves in opposition to non-constitutional approaches to the emerging international legal order, such as global legal pluralism and global administrative law (for example, Krisch 2010; Dunoff 2010). Third, the nature of the relationship between functionalism and global constitutionalism has dramatically changed from what it was in the immediate post-war era. At that time, ‘functionalism’ was understood as a strategy for promoting international cooperation that stood in opposition to ‘constitutionalist’ approaches. In contrast, functionalism later came to be understood as a methodology or approach for identifying and analyzing the constitutional elements of different international regimes. Similar understandings are found in the literature on comparative constitutional law, to which we now briefly turn. Comparative Constitutional Law Comparative constitutional law examines the factors that shape constitutions and constitutional processes, as well as the economic, political, and social consequences of constitutions. It explores cross-national differences in constitutions, processes of constitutional ‘borrowing’, and various features of constitutional design and redesign. Across virtually all of comparative law ‘functionalism’ is a – perhaps ‘the’ – dominant methodological approach. As one classic comparative law text declares, ‘The basic methodological principle of all comparative law is that of functionality’ (Zweigert and Kotz 1998, p. 34).8 The functional approach is premised on the claim that ‘the legal system of every society faces essentially the same problems, and solves those problems by quite different means though very often similar results’ (Zweigert and Kotz 1998, p. 34). Functionalist approaches to comparative constitutional law are likewise premised on an: underlying assumption ... that whereas most relatively open, rule-of-law polities face essentially the same set of constitutional challenges, they may adopt quite different means or approaches for dealing

8 Zweigert and Kotz overstate the case as other approaches are used in comparative constitutional law; see, for example, Jackson 2012 (discussing alternative methodologies).

260  Handbook on global constitutionalism with these challenges. By referring to constitutional jurisprudence and practices of other presumably similarly situated polities, we might be able to gain better understanding of our own set of constitutional values and structures and enrich, and ultimately advance, a more cosmopolitan or universalist view of our constitutional discourse. At a more concrete level, constitutional practice in a given polity might be improved by emulating pertinent constitutional mechanisms developed elsewhere. (Hirschl 2005, p. 127)9

To claim that functionalism is a dominant approach in comparative constitutional law is emphatically not to claim that it is an uncontroversial approach. To the contrary, the meaning and normative significance of functionalism constitutes one of the most enduring and most contested issues in comparative law. As one leading commentator notes, ‘[t]he functional method has become both the mantra and the bête noire of comparative law’ (see, for example, Michaels 2006, p. 340).10 For current purposes, the merits of vigorous debates over the conceptual coherence and feasibility of functionalism in comparative constitutional law are less significant than the fact that functionalism has been and remains the dominant approach to the field, and that the understanding of functionalism in this area is both similar to and different from the understanding of functionalism found in the global constitutionalism literature. First, functionalism in global constitutionalism and in comparative constitutional law shares several similarities. Specifically, in each field, functionalism provides a methodology, or a mode of analysis, that can be applied to the identification, analysis, and critique of constitutional phenomena. Moreover, and relatedly, the term is used both descriptively and normatively. Descriptively, functionalism identifies certain features found or strategies used in different constitutional orders or outcomes. Normatively, it lends itself to projects of constitutional reform, as it identifies doctrinal or institutional developments thought to produce more desirable constitutional orders. Finally, functionalism encounters similar critiques in both areas, specifically as being too abstract (that is, a-historical and a-contextual), thereby obscuring its own politics (Frankenberg 1985; Schneiderman 2009; see also Teitel 2004). In other ways, functionalism in these two areas is substantially different. Perhaps the most important difference consists in global constitutionalism’s focus on the purpose of rules and institutions, as compared with the focus on problems found in comparative constitutional law literature. In writings on global constitutionalism, functionalist scholars examine whether certain constitutional functions, such as the protection of fundamental rights or the judicial review of executive or legislative action, are fulfilled in various international domains. In the comparative constitutional law literature, in contrast, the problem takes center stage and the relevant inquiry is into the different ways that different systems address similar issues. From this perspective, legal and political institutions are understood not as doctrinal constructs but as social responses to problems, and institutions are understood to be useful or productive only insofar as they produce solutions to certain problems.

See also Tushnet (1999, p. 1228): ‘[f]unctionalism claims that particular constitutional provisions create arrangements that serve particular functions in a system of governance. Comparative constitutional study can help identify those functions and show how different constitutional provisions serve the same function in different constitutional systems.’ 10 In this chapter, Michaels analyzes at least seven different conceptualizations of functionalism. 9

The shifting relationship between functionalism and global constitutionalism  261

FUNCTIONALISM AS A FEATURE OF CONSTITUTIONALISM More recently, a new way of understanding the relationship between functionalism and constitutionalism has started to emerge in the literature. In this new approach, functionalism is understood to be a feature, or a type, of constitutionalism. The most fully developed version of this argument is found in scholarship by Isiksel, who writes that ‘the EU’s legal system can and should be understood as both functionalist and constitutional at the same time’ (Isiksel 2016, p. 76). By this, Isiksel does not mean to suggest that the EU ‘is the functional equivalent of a constitutional system’, or that its complex institutional structure fulfills the roles that constitutional systems are expected to discharge. Rather, the claim is that the EU is ‘a particular kind of constitutional regime’ (Isiksel 2016, p. 73), namely, a ‘functional’ constitutional system because it possesses three distinct elements. First, unlike domestic constitutional systems of comprehensive scope, ‘the EU’s legal system is functionally delimited’ (Isiksel 2016, p. 78). In particular, ‘the European Union issues norms which govern a loosely defined but functionally delimited sphere of public policy’ (Isiksel 2012, p. 111). Importantly, Isiksel emphasizes that ‘[f]unctional delimitation should not be confused with functional specialization, since the cardinal objective of economic union is not specialized or self-contained’ (Isiksel 2016, p. 79, original emphasis). To the contrary; the EU’s competences extend across a broad array of policy objectives implicated by the core project of economic union. Significantly, this understanding completes the conceptual move to delink ‘constitutionalism’ from the statist paradigm: ‘[i]nsofar as it acknowledges its own limited scope but nevertheless operates as a fully-fledged constitutional system within that scope, the EU legal order effectively decouples constitutional authority from the attribute[s] of sovereignty’ (Isiksel 2016, p. 80). Second, the EU’s constitutional system ‘is framed by a narrowly defined telos’ (Isiksel 2012, p. 111).11 The telos is that of economic union, understood ‘in a capacious sense to include market integration, market regulation, and economic and monetary (and perhaps ultimately fiscal) union’ (Isiksel 2016, p. 83). This purposive orientation contrasts with many conventional understandings of constitutionalism. In particular, it contrasts with the ‘functionalism’ used in the global constitutionalism literature reviewed above, where constitutional norms are understood as ‘rules about rules’ and lack a strong normative orientation. From that perspective, constitutional norms provide the framework within which ordinary political issues are addressed; in Isiksel’s version, in contrast, constitutional norms are a means of entrenching substantive policy preferences that member states have already agreed to (Isiksel 2012, p. 111).12 Finally, the EU exemplifies functional constitutionalism because the EU’s authority and legitimacy ‘rest ... primarily upon a functionalist pattern of justification’ (Isiksel 2016, p. 87). Given that the EU’s constitutional system is grounded in the telos of market integration with the goal of increasing wealth and, ultimately, producing a peaceful legal order in Europe, its legitimacy is contingent upon its ability to deliver these goods.13 This functionalist justification Many others view the EU’s constitutional evolution in non-telelogical terms, see, for example, Shaw (2003). 12 Isiksel notes that, over time, the EU’s aspirations grew beyond simple economic integration, and now encompasses a number of ‘more capacious political objectives’ (2012, p. 117). 13 For an earlier version of this particular claim, see Scharpf (1999). 11

262  Handbook on global constitutionalism contrasts sharply with the justificatory discourses associated with other constitutional orders. Far more common, for example, are constitutional orders that rest their legitimacy on their founding as an act of pouvoir constituant or their democratic pedigree. One might contest the empirical and conceptual adequacy of this account of the EU, and it remains to be seen whether scholars will apply the concept of ‘functional constitutionalism’ to other international legal regimes. But this approach is nonetheless significant in at least two respects. First, it productively demonstrates that it is still possible to repurpose the term functionalism, and to redefine its relationship to constitutionalism. Unlike the post-war era, where the two terms were understood as mutually exclusive strategies of international cooperation, in Isiksel’s account, functionalism identifies and demarcates a distinctive type of constitution – one that is functionally delimited, teleological in orientation and justified in functional terms. It also differs from the use of the term in recent writings on global constitutionalism and comparative constitutionalism. In those literatures, ‘functionalism’ denoted a methodological approach to understanding constitutional orders – a ‘tool of the knower rather than a feature of the known’ (Isiksel 2016, p. 73). In contrast, in Isiksel’s account, functionalism is understood as a defining property of a particular kind of constitutional order. Second, and relatedly, the ‘functionalist constitutionalism’ writings illustrate the vitality of the term ‘functionalism’ and its enduring ability to enrich our understanding of evolving forms of global constitutionalism.

CONCLUSION This chapter has reviewed the multifaceted relationship between the terms ‘functionalism’ and ‘constitutionalism’. The trajectory of their complex and shifting encounters has been neither linear, nor ‘progressive’ in the sense of moving toward an ultimate goal. Rather the terms ‘functionalism’ and ‘constitutionalism’ serve as rich and flexible resources that can help us understand ongoing developments in global governance. As repurposed by successive scholars over time, ‘functionalist’ approaches and accounts have opened up new ways of understanding constitutionalism, generated new insights and suggested new research agendas. As we have seen, functionalism encompasses a variety of traditions, approaches and styles of thought. While the lack of a clear and singular definition can, at times, be problematic, the rich intellectual vibrancy of functionalist approaches suggests that they remain at least as well positioned as any competitors to continue to illuminate the theoretical and normative questions raised by global constitutionalism.

REFERENCES Albert, R. (2012), ‘The cult of constitutionalism’, Florida State University Law Review, 39 (2), 373–416. Block, N. (1980), ‘Introduction: What is functionalism?’, in N. Block (ed.), Readings in the Philosophy of Psychology, Cambridge, MA; Harvard University Press, pp. 171–84. Claude Jr., I. (1964), Swords into Plowshares: The Problems and Progress of International Organization, 3rd edn, London: University of London Press. De Wet, E. (2006), ‘The international constitutional order’, International and Comparative Law Quarterly, 55 (1), 51–76. Doyle, M.W. (2009), ‘The UN Charter – a global constitution?’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 113–32.

The shifting relationship between functionalism and global constitutionalism  263 Dunoff, J.L. (2006), ‘Constitutional conceits: The WTO’s “Constitution” and the discipline of international law’, European Journal of International Law, 17 (3), 647–75. Dunoff, J.L. (2010), ‘International law in perplexing times’, Maryland Journal of International Law, 25 (1), 11–36. Dunoff, J.L. and J.P. Trachtman (2009), ‘A functional approach to international constitutionalization’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 3–36. Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’, Columbia Journal of Transnational Law, 36 (3), 529–619. Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community, Leiden: Martinus Nijhoff. Frankenberg, G. (1985), ‘Critical comparisons: re-thinking comparative law’, Harvard International Law Journal, 26 (2), 411–56. Gardner, R. (1974), ‘The hard road to world order’, Foreign Affairs, 52 (3), 556–76. Groom, A.J.R and P. Taylor (eds) (1975), Functionalism: Theory and Practice in International Relations, London: University of London Press. Hirschl, R. (2005), ‘The question of case selection in comparative constitutional law’, American Journal of Comparative Law, 53 (1), 125–55. Iser, W. (1975), ‘The reality of function: A functionalist approach to literature’, New Literary History, 7 (1), 7–38. Isiksel, T. (2012), ‘On Europe’s functional constitutionalism: Towards a constitutional theory of specialized international regimes’, Constellations, 19 (1), 102–20. Isiksel, T. (2016), Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State, Oxford: Oxford University Press. Jackson, V. (2012), ‘Comparative constitutional law: methodologies’, in M. Rosenfeld and A. Sajo (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 54–74. Joyner, C.C. (1997), ‘Conclusion: The United Nations as international law-giver’, in C.C. Joyner (ed.), The United Nations and International Law, Cambridge: Cambridge University Press, pp. 432–58. Klabbers, J. (2011), ‘Contending approaches to international organizations: Between functionalism and constitutionalism’, in J. Klabbers and Å. Wallendahl (eds), Research Handbook on the Law of International Organizations, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 3–30. Klabbers, J. (2015), ‘Foreword, The transformation of international organizations law’, European Journal of International Law, 26 (1), 9–82. Kleinlein, T. (2012), Konstitutionalisierung im Volkerrecht: Konstruktion und Elemente einer idealistischen Volkerrechtslehre (Constitutionalization in the Law of the People: Construction and Elements of an Idealistic Legal Doctrine), London: Springer. Koskenniemi, M. and P. Leino (2002), ‘Fragmentation of international law? Postmodern anxieties’, Leiden Journal of International Law, 15 (3), 553–79. Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford: Oxford University Press. Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: On the relationship between constitutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 258–324. Lang, A. (2012), ‘Book review: Ruling the world?’, American Journal of International Law, 106 (1), 197–203. Malinowski, B. (1944), A Scientific Theory of Culture and Other Essays, Chapel Hill, NC: University of North Carolina Press. Michaels, R. (2006), ‘The functional method of comparative law’, in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, pp. 339–82. Mitrany, D. (1948), ‘The functional approach to world organization’, International Affairs, 24 (3), 350–63. Mitrany, D. (1965), ‘The prospect of integration: Federal or functional?’, Journal of Common Market Studies, 4 (2), 119–49.

264  Handbook on global constitutionalism Mitrany, D. (1966), A Working Peace System, Chicago, IL: Quadrangle Books. Mitrany, D. (1971), ‘The functional approach in historical perspective’, International Affairs, 47 (3), 532–43. Mitrany, D. (1975), The Functional Theory of Politics, London: Robertson. Parsons, T. (1951), The Social System, London: Routledge and Kegan Paul. Paulus, A.L. (2009), ‘The international legal system as a constitution’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 69–111. Peters, A. (2006), ‘Compensatory constitutionalism: The function and potential of fundamental international norms and structures’, Leiden Journal of International Law, 19 (3), 579–610. Sandholtz, W. and A. Stone Sweet (2012), ‘Neo-functionalism and supranational governance’, in E. Jones, A. Menon and S. Weatherill (eds), The Oxford Handbook of the European Union, Oxford: Oxford University Press, pp. 18–33. Scharpf, F.W. (1999), Governing in Europe, Oxford: Oxford University Press. Schmitter, P.C. (2004), ‘Neo-neo-functionalism?’, in A. Wiener and T. Diez (eds), European Integration Theory, Oxford: Oxford University Press, pp. 45–74. Schneiderman, D. (2009), ‘Functionalism’s shortfalls or how to depoliticize global constitutionalism’, EJIL Talk!, accessed 2 May 2017 at http://​www​.ejiltalk​.org/​functionalisms​-​​shortfalls​-or​-how​-to​ -depoliticize​-global​-constitutionalism/​. Shaw, J. (2003), ‘Process, Responsibility and Inclusion in EU Constitutionalism’, European Law Journal, 9 (1), 45–68. Stone Sweet, A. (2012), ‘A cosmopolitan legal order: Constitutional pluralism and rights adjudication in Europe’, Global Constitutionalism, 1 (1), 53–90. Teitel, R. (2004), ‘Comparative constitutional law in a global age’, Harvard Law Review, 117 (8), 2570–96. Thornhill, C. (2012), ‘Contemporary constitutionalism and the dialectic of constituent power’, Global Constitutionalism, 1 (3), 369–404. Tomuschat, C. (1993), ‘Obligations arising for states without or against their will’, Recueil des Cours, 214, 195–374. Trachtman, J.P. (2006), ‘The constitutions of the WTO’, European Journal of International Law, 17 (3), 623–46. Truman, H.S. (1945), ‘Address in San Francisco at the Closing Session of the United Nations Conference’ (June 26, 1945), in Documents of the United Nations Conference on International Organization, 1, 680–87. Tushnet, M. (1999), ‘The possibilities of comparative constitutional law’, Yale Law Journal, 108 (6), 1225–310. Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59. Walker, N. (2003), ‘Postnational constitutionalism and the problem of translation’, in J. Weiler and M. Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press, pp. 27–54. Zemanek, K. (2012), ‘Can international law be “constitutionalized”?’, in M. Kohen, R. Kolb and D.L. Tehindrazanarivelo (eds), Principles and Fundamentals of International Law in the 21st Century, Leiden: Martinus Nijhoff, pp. 25–45. Zweigert, K. and H. Kotz (1998), An Introduction to Comparative Law, 3rd edn, trans. T. Weir, Oxford: Oxford University Press.

19. Global constitutionalism and international public authority in the crisis of liberal internationalism Armin von Bogdandy, Matthias Goldmann and Ingo Venzke1

1

THE INTERNATIONAL PUBLIC AUTHORITY APPROACH

The purpose of this chapter is, first, to reconstruct the relationship between global constitutionalism and international public authority. Taken together, both approaches revolve around two key questions. First, what is international public authority? Second, what are the conditions for the legitimate and effective exercise of international public authority? This reconstruction takes place against the background of past research on the subject. It forces us to reassess the value of that research and to outline prospects for the future. International institutions counted among the favourite subjects of research in public international law in the first decade of the 2000s. 2 Processes of globalization had caused international institutions to change in both quantitative and qualitative dimensions. Superposing state authority in one policy field after another, the legality and legitimacy of international institutions’ exercise of authority became the subject of critique both in scholarship and the public at large. It prompted the search for standards of legality and legitimacy applicable to such exercises of authority. Proposals focused on human rights, the rule of law, and principles of participation, transparency, and accountability. They animated the research on global constitutionalism and international public authority, among others.3 A lot has changed in this regard within only a few years. First, political platforms favouring quite explicitly the national interest over the common weal of humanity have gained momentum. As Brexit and the withdrawal of the US from several international organizations show, it

1 The present chapter draws on our article ‘From Public International Law to International Public Law: Translating World Public Opinion into International Public Authority’ (2017) 28 European Journal of International Law 115–45. 2 E.g., E. Benveniśtî, The Law of Global Governance (Hague Academy of International Law, 2014); J. Brunnée and S. Toope, Legitimacy and Legality in International Law. An Interactional Account (Cambridge University Press 2010); S. Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’, 37 New York University Journal of International Law and Policy (NYUJILP) (2005) 663; B. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’, 15 European Journal of International Law (EJIL) (2004) 1; B. Kingsbury, N. Krisch, and R. Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005) 15; J. Klabbers, A. Peters, and G. Ulfstein (eds), The Constitutionalization of International Law (Oxford University Press 2009); J. Pauwelyn, R. Wessel, and J. Wouters (eds), Informal International Lawmaking (Oxford University Press 2012). 3 For many: Lang and Wiener, Chapter 1 in this Handbook; A. von Bogdandy, M. Goldmann, and I. Venzke, ‘From Public International to International Public Law: Translating World Public Opinion into International Public Authority’, 28 European Journal of International Law (2017) 115.

265

266  Handbook on global constitutionalism is no longer a marginal position to seek to unwind international institutions, all the while the global expansion of business activities continues unabated.4 Second, governments showing different degrees of authoritarian inclinations have hampered decision-making in international organizations,5 sought to wrest international organizations from the control of liberal democracies,6 or founded their own organizations focused on securing their control over their people, often with the help of digitalized surveillance technology.7 Third, neo-liberal narratives and free-market ideologies that helped sustain the rationale of international economic institutions have lost more of their appeal as globalization’s discontents have become more apparent to a greater number of people. Still, the need for international institutions finds ample recognition in current public discourse and practice. The Covid-19 crisis, climate change, the migration crisis, or the widespread practice of tax evasion have underlined the impossibility of tackling worldwide challenges in the absence of international institutions. Each of these crises has brought international institutions into the pole position of global political developments and changed their practice significantly. These developments amount to a highly ambivalent and contradictory pattern of attitudes towards international institutions. World public opinion seems divided about them. Liberal internationalists might wish to strengthen international institutions in order to better further common interests, although the expansion of their power might raise concerns regarding their legitimacy.8 Sovereigntists and autocrats might be willing to cooperate selectively in the frame of international institutions if it furthers their interests, always worried about expanding international public authority that encroaches upon their sovereignty.9 Those critical of economic globalization might in principle desire global cooperation to address global problems, but are

From the backlash literature: K. Alter and M. Madsen, ‘Beyond Backlash: The Consequences of Adjudicating Mega-politics’, Northwestern Public Law Research Paper No. 21–30 (2021). 5 E.g. in the context of the Council of Europe: S. Steininger, ‘Managing the Backlash? The PACE and the Question of Participation Rights for Russia’ (2018) VerfBlog, https://​doi​.org/​10​.17176/​20181012​ -131857​-0. On the ECtHR, see L. Helfer and E. Voeten, ‘Walking Back Human Rights in Europe?’ 31 European Journal of International Law (2020) 797; M. Madsen, The Narrowing of the European Court of Human Rights? Legal Diplomacy, Situational Self-Restraint, and the New Vision for the Court (Brill 2021). 6 A. von Bogdandy and P. Villarreal, ‘International law on pandemic response: a first stocktaking in light of the coronavirus crisis’, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper 2020-07 (2020). 7 T. Ginsburg, ‘Authoritarian International Law?’ 114 American Journal of International Law (2020) 221; T. Ginsburg, Democracies and International Law (Cambridge Univerisity Press 2021). 8 M. Zürn and M. Ecker-Ehrhardt, ‘Politisierung als Konzept der Internationalen Beziehungen’ in Michael Zürn and Matthias Ecker-Ehrhardt (eds), Die Politisierung der Weltpolitik (Suhrkamp 2013) 7; P. Furia, ‘Global citizenship, anyone? Cosmopolitanism, privilege and public opinion’ (2005) 19 Global Society 331; F. Ghassim, M. Koenig-Archibugi, and L. Cabrera, ‘Public Opinion on Institutional Designs for the United Nations: An International Survey Experiment’ 66 International Studies Quarterly (2022) sqac027. Further evidence is to be found in the detailed studies published at www​.WorldPublicOpinion​ .org. 9 L. Mälksoo, Russian Approaches to International Law (Oxford Univerisity Press 2015); S. Chesterman, ‘Can International Law Survive a Rising China?’, 31 European Journal of International (2021) 1507. 4

Global constitutionalism and international public authority  267 wary about their redistributive impact, fearing to suffer serious disadvantages once again.10 Meanwhile, libertarians might prefer non-governmental networks based on distributed ledger technology to provide crucial services and prevent fraud. In response to this pattern of views about international institutions, we reassess our theory of international public authority. The purpose of our theory is complementary to that of global constitutionalism. Both approaches understand international institutions as collective public entities created for the exercise of international public authority, rather than as contractual vehicles for inter-state coordination. Like global constitutionalism, we develop this theory with a view to re-introducing the ‘public’ in global governance – a concept that downplayed the difference between the public and the private, between the statal and the suprastatal. Switching from ‘public international law’ to ‘international public law’ therefore implied it as a task of international law to ensure the legitimacy and effectiveness of international institutions. The difference between our theory and global constitutionalism is that we problematize the notion of ‘authority’, i.e., the acts of international institutions which fall into the scope of international public law. The chapter undertakes this reassessment of the international public authority approach by way of a dialectical exchange with diverging views of international institutions, carving out in particular its complementary character with global constitutionalism (Section 2). The following section sets out our concept of international public law and reconstructs the main principles governing its exercise (Section 3). In a nutshell, the exercise of international public authority is the adoption of an act that affects the freedom of others in pursuance of a common interest. This understanding helps single out activities that require grounds of legitimacy that go beyond the consent of member states to the institution’s foundational act. Singling out those activities is a precondition for increasing their legitimacy. It also opens avenues for more effective regulation.11 In addition to the principles of participation, transparency, and accountability that have been at the centre of most research in the past decades, we believe that the current challenges mapped here make it necessary for international public authority to also meet substantive criteria that have evolved in practice, namely fundamental human rights, sustainability, and the principle of common but differentiated responsibility (Section 4). The chapter concludes with a view on the implications of the crisis of liberal internationalism for both concepts, which calls into question both the existence of a global constitution and the identification of a relevant ‘public’ (Section 5).

B. Chimni, ‘Capitalism, Imperialism, and International Law in the Twenty-First Century’, 14 Oregon Review of International Law (2012) 17; I. Venzke, ‘The Law of the Global Economy and the Spectre of Inequality’, 9 London Review of International Law (2021) 111. 11 Legitimacy and effectiveness are not opposing concepts. Effective political problem solving is a possible source of output legitimacy but certainly not sufficient under a public law paradigm. See the seminal F.W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford University Press 1999), at 6ff. 10

268  Handbook on global constitutionalism

2

THE INTERNATIONAL PUBLIC AUTHORITY APPROACH IN A COMPARATIVE PERSPECTIVE

This part elaborates our approach in a Socratic way, engaging with the texts that guided our reflections and might cast them into doubt. The first set of texts juxtaposes our approach to understandings informed by private law thinking. Traditional private law approaches to international law emphasize the contractual character of treaties and accept international institutions under the condition that they serve defined, apolitical functions. At the height of globalization, these approaches have been reformulated by systems theoretical approaches to globalization that replaced states with functional regimes as the basic unit of the international order. By contrast, rational choice approaches recalibrated the traditional private law paradigm by shifting from state consent to state interest. This prepared the ground for authoritarian positions that prefer selective commitments to international institutions closely controlled by the capitals of powerful member states (Section A). The second set of texts engages us with more critical, contextual positions. Being rooted in American Legal Realism, we count transnational legal process and critical legal studies among them. They seek to go beyond legal formalism and understand law as an instrument of power, although disagreeing on whether that is a good thing or not. More recently, ‘law and political economy’ has emerged as a new, contextual approach that shares the critical perspective on the law, but wishes to transform its substantive character (Section B). The third step presents three approaches that fit neatly into the public law paradigm. Each of these approaches depicts certain aspects of that thinking. Our approach aims at combining their strengths and addressing some of their weaknesses (Section C). A

International Public Authority versus the Private Law Paradigm

1 The traditional private law paradigm: bilateralism, coordination, consent In the past, the ‘public’ in public international law was explained by the fact that its main subjects are states – that is, public institutions – not because it governs the exercise of public authority.12 In fact, the very lack of public authority – that is, anarchy – was often seen as the defining feature of the international order.13 Accordingly, many consider public international law to be a horizontal order of co-existence based on consent.14 Thus, it mostly operates on the basis of a private law paradigm. Accordingly, international institutions do not possess legal personality; in fact, they are hardly more than permanent conferences of the states parties with bureaus to support their activities.15

M. Janis, ‘Jeremy Bentham and the Fashioning of “International Law”’, (1984) 78 American Journal of International Law (AJIL) 405, at 408. 13 J. Austin, The Province of Jurisprudence Determined (1832), at 208; G. Hegel, Grundlinien der Philosophie des Rechts (1821), at para. 333. 14 H. Triepel, Völkerrecht und Landesrecht (1899); L. Oppenheim, International Law: A Treatise (1905); J. Westlake, International Law (1904); G.F. von Martens, A Compendium of the Law of Nations: Founded on the Treaties and Customs of the Modern Nations of Europe, translated by William Cobbett (1802); more recent authors include P. Weil, ‘Towards Relative Normativity in International Law?’, 77 American Journal of International Law (1983) 413, at 441; R. Wedgwood, ‘The International Criminal Court: An American View’, 10 EJIL (1999) 93, at 99ff. 15 Cf. F. von Liszt, Das Völkerrecht (11th edn, 1918) 138 et seq. 12

Global constitutionalism and international public authority  269 Surely, the private law paradigm has always attracted much critique.16 It is inadequate for many, if not most, parts of public international law today. In the attempt to cater to common interests, international law has meanwhile developed a sophisticated institutional structure that is hard to reconcile with ideas of horizontal relations based on (state) consent alone.17 Our shift towards international public law rests on the conviction that the private law paradigm, due to its focus on national interest and horizontal structures, is insufficient, in particular, when it comes to the operation of this institutional structure. International public law, by contrast, lays bare its authority, reads international law in relation to common interests, and confronts problems of legitimacy. Thinking in terms of international public law does not categorically replace the private law paradigm. Some fields and practices of international law may still be understood in analogy to contracts.18 What is more, the private law paradigm does provide tools to react to a changed reality.19 First of all, private law instruments can further the common good. Contracts and property are essential to a functioning, welfare-enhancing economy; private law instruments like emissions rights might contribute to fighting climate change.20 Second, in contemporary international legal practice, private and public law aspects are often closely intermingled. Emmanuelle Jouannet has argued that even modern ‘liberal’ international law – that is, the contemporary international law of coordination that follows the private law paradigm – is not only based on sovereign equality but also on democracy and human rights.21 This view is corroborated by developments in investment arbitration.22 Eyal Benveniśtî has used present-day private law theories in order to advance far-reaching proposals for the understanding and development of international law.23 He presents states as trustees of humanity and reconstructs their sovereign control over a territory along progressive theories of private property.24 However, this approach concerns relationships between states and foreign citizens under their jurisdiction. It does not deal with international institutions. Indeed, in his recent book, The Law of Global Governance, Benveniśtî himself opts for global administrative law, thereby leaving the private law paradigm behind when he turns to international institutions.25

16 See already J. Bluntschli, Das moderne Voelkerrecht der civilisirten Staten als Rechtsbuch dargestellt (1872). 17 N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, 108 AJIL (2014) 1. This development reaches back about one century. See in detail M. Goldmann, Internationale öffentliche Gewalt. Handlungsformen internationaler Institutionen im Zeitalter der Globalisierung (Springer 2015), at 19–93. 18 J. Weiler, ‘The Geology of International Law: Governance, Democracy and Legitimacy’, 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) (2004) 547. 19 Cf. J. d’Aspremont (ed.), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011). 20 See the sharp overview in D. Caruso, ‘Private Law and State-Making in the Age of Globalization’, 39 NYUJILP (2006) 1. 21 E. Jouannet, The Liberal-Welfarist Law of Nations (Cambridge University Press 2012), at 205–15. 22 Overview in S. Steininger, ‘What’s Human Rights Got To Do With It? An Empirical Analysis of Human Rights References in Investment Arbitration’ Leiden Journal of International Law (2017) 1. 23 E. Benveniśtî, ‘Sovereigns as Trustees of Humanity’, 107 AJIL (2013) 295. 24 Ibid., at 384–415. 25 E. Benveniśtî, The Law of Global Governance (Brill 2014), at 79–80.

270  Handbook on global constitutionalism 2 Systems theory: the renewed lex mercatoria A different private law paradigm has been proposed by systems theoretical approaches.26 Inspired by the evolution of post-industrial society, these approaches consider functional systems, rather than individuals or states as the core units of social organization. The different functional systems (law, economics, politics, and so on) are believed to evolve in isolation from each other. They also globalize at different speeds. The political system typically lags behind.27 For this reason, systems theory considers the idea of an overarching public order, which is central to international public law thinking, as a lost cause. Instead, it places its bets on spontaneous interactions within the various social systems of world society.28 The renewed lex mercatoria serves as a principal case in point.29 Such a global legal regime is understood as developing in line with the rationality of its corresponding social system. The relationship between legal regimes reflects the profound contradictions and collisions that prevail in world society, thus giving rise to a global legal pluralism of different legal regimes.30 Even the emergence of human rights as a – somehow – constitutional standard in international law remains limited to the political realm, thus to one functionally differentiated system of society and is far from being truly universal.31 Collisions among different legal regimes may at best be tamed through mechanisms of horizontal coordination, by ‘reciprocal observation, anticipatory adaptation, cooperation, trust, self-commitment, reliability, negotiations, and a context of permanent reference to one another’.32 The private law paradigm ought to explain this form of horizontal coordination. System theoretical approaches are related to calls for private international law or a new transnational (or global) law as the appropriate legal response to global governance.33 They argue that the increasing importance of private, informal, and transnational phenomena, as well as all of the various hybrids they produce, renders public law approaches ill-suited, if not hopeless, to take care of common interests.34 It is to be admitted that strictly hierarchical, state-centred, and unitary conceptions of public law are no longer convincing. But there are good reasons to doubt that rules established between private actors can live on their own, whether factually or normatively speaking.

26 Details in A. von Bogdandy and S. Dellavalle, ‘The Lex Mercatoria of Systems Theory: Localisation, Reconstruction and Criticism from a Public Law Perspective’, 4 Transnational Legal Theory (2013) 59. 27 N. Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp 1997), at 65ff, 92ff, 102ff. 28 Ibid., at 48ff. 29 Seminal: G. Teubner, ‘Global Bukowina’: Legal Pluralism in the World Society’, in G. Teubner (ed.), Global Law without a State (Dartmouth 1997) 3, at 6. 30 Ibid., at 40. 31  G. Teubner, Verfassungsfragmente: Gesellschaftlicher Konstitutionalismus in der Globalisierung (Suhrkamp 2012), at 82–5. 32  A. Fischer-Lescano and G. Teubner, Regime-Kollisionen: zur Fragmentierung des globalen Rechts (Suhrkamp 2006), at 52; Teubner, supra note 31, at 225ff. 33 For private international law, see H. Watt, ‘Private International Law Beyond the Schism’, 2 Transnational Legal Theory (2011) 347; for transnational law, see G.-P. Calliess and P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart 2009); for global law, see H. Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford University Press 2013). 34 P. Zumbansen, ‘Transnational Legal Pluralism’, 1 Transnational Legal Theory (2010) 141.

Global constitutionalism and international public authority  271 Factually, the past decade has seen the return of the state as an economic actor.35 Sovereign wealth funds and state-owned enterprises have become crucial economic actors,36 protectionism abounds,37 industrial policy is celebrating a renaissance,38 and the Covid-19 pandemic has underlined the role of the state as an investor and economic support system. Normatively, the claim for the desirability of a ‘public’ dimension expresses the awareness and conviction that social interactions are, and should be, regulated by rules that emerge from discourses about common interests.39 Neither the ambitious political vision for peace and justice, nor the articulation and promotion of more specific common interests can be achieved by regimes based solely on spontaneous private ordering. In recognition of this, world public opinion places its hopes on the effective regulation by legitimate international institutions. 3 From rational choice to authoritarian international law The private law paradigm has been reinterpreted by (neo-)realist international lawyers who are sceptical of the prowess of international law, of international institutions, and of legally curbing state power. From their viewpoint, a public law approach looks utterly misguided. Jack Goldsmith and Eric Posner caused a stir with such a view one-and-a-half decades ago.40 According to them, authority beyond states is plainly impossible, as a matter of fact and for normative reasons. For democratic states, the domestic constituency is the only relevant factor. And governments are bound to do what is best for them. States are therefore unlikely to truly pursue common projects with other states, let alone cosmopolitan ones.41 Any international obligation, even if it results from a freely concluded treaty, is suspicious since it constrains the domestic democratic process.42 State interest has therefore replaced state consent. The criticisms of this approach are manifold. For example, it categorically denies that international commitments – in the form of a treaty or otherwise – could well be an expression of domestic democratic interests, regardless of the immediate benefits arising from such commitments at a given time. It considers states as billiard balls that are able to articulate a unitary interest, ignoring that international commitments might play a role in domestic conflicts. It further disregards that international cooperation enables individual states to do together what they could not do alone. Finally, it only views international constraints as problematic and does not take into account the constraints that individual states would impose upon one another in the absence of international cooperation. Other rational choice approaches provide a more contextualized analysis, but share the attempt to link everything happening in the field of international law to a certain vision of

I. Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations? (Penguin 2010). 36 I. Willemyns, ‘Disciplines on State-Owned Enterprises in International Economic Law: Are We Moving in the Right Direction?’ (2016) 19 Journal of International Economic Law 657; A. Gelpern, ‘Sovereignty, Accountability, and the Wealth Fund Governance Conundrum’ 1 Asian Journal of International Law (2011) 289. 37 J. Heath, ‘The New National Security Challenge to the Economic Order’ 129 Yale LJ (2019) 1020. 38 R. Wade, ‘Return of Industrial Policy?’ 26 International Review of Applied Economics (2012) 223. 39 Cf. M. Goldmann, ‘A Matter of Perspective: Global Governance and the Distinction between Public and Private Authority (And Not Law)’ 5 Global Constitutionalism (2016) 48. 40 J. Goldsmith and E. Posner, The Limits of International Law (Oxford University Press 2005). 41 Ibid., at 212. 42 Ibid., at 218–19. 35

272  Handbook on global constitutionalism human and state behaviour where self-interest constitutes the principal source of motivation.43 Some of this research recognizes that it might be rational for self-interested states to confer tasks to international institutions with some degree of autonomy.44 Yet even these approaches ultimately continue to take the maximization of state interests to be the main, if not single, reason for action. This yardstick is both unduly reductive and highly indeterminate.45 Behavioural approaches to international law modify this yardstick, but do not mitigate these concerns. Rather than considering context and structures as influential factors of social evolution, they seek to safeguard the individualistic, rationalistic framework by psychologizing state interest.46 In a number of ways, authoritarian views of international law stand on the shoulders of the rational choice approach. By ‘authoritarian views’, we refer to the practice, rather than the theory of authoritarian states. This concerns particularly Russia and China, but also includes Western democracies afflicted by problematic rulers like the United States under President Trump. Official views of international law articulated by such regimes often take up the language of the traditional private law paradigm, including a selective approach to international cooperation and carefully concealed hegemonic aspirations euphemized as ‘harmony’.47 In practice, though, two tendencies emerge. One is what Tom Ginsburg has termed ‘autocratic international law’. It comprises cooperative arrangements among autocratic or barely democratic regimes that focus on areas of their particular interest, especially security and surveillance issues.48 The other tendency concerns the influence of such governments within existing international organizations. Examples include China’s approach to the WHO,49 the United States’ approach to international trade law under Trump,50 or Russia’s relation to the Council of Europe and the European Court of Human Rights.51 One could summarize their impact as the attempt to influence international institutions to favour the interests of the regime and to

43 E.g., J. Dunoff and J. Trachtman, ‘Economic Analysis of International Law’, 24 NYUJILP (1999) 1, at 1; A. Guzman, How International Law Works: A Rational Choice Theory (Oxford University Press 2008). 44 E.g., B. Simmons, ‘Money and the Law: Why Comply with the Public International Law of Money?’, 25 NYUJILP (2000) 323; J. Trachtman, ‘The Economic Structure of the Law of International Organizations’, 15 Chicago Journal of International Law (2014) 162. 45 M. Koskenniemi, ‘Global Governance and Public International Law’, 37 Kritische Justiz (2004) 241, at 247ff; R. Cooney and A. Lang, ‘Taking Uncertainty Seriously: Adaptive Governance and International Trade’, 18 EJIL (2007) 523. 46 A. van Aaken, ‘Behavioral International Law and Economics’, 55 Harvard International Law Journal (2014) 421, at 426, 432; T. Broude, ‘Behavioral International Law’, 163 University of Pennsylvania Law Review (UPLR) (2015) 1099, at 1116–18. 47 L. Mälksoo, ‘Russia and China Challenge the Western Hegemony in the Interpretation of International Law’ (2016) EJIL Talk, 15 July 2016 http://​www​.ejiltalk​.org/​russia​-and​-china​-challenge​ -the​-western​-hegemony​-in​-the​-interpretation​-of​-international​-law/​ accessed 1 March 2017. 48 Ginsburg, Authoritarian International Law?’, supra note 7. 49 E.g. Shaffer, Emerging Powers and the World Trading System: The Past and Future of International Economic Law (Cambridge University Press 2021). 50 H. Koh, ‘Trump Change: Unilateralism and the “Disruption Myth” in International Trade’ 44 Yale Journal of International Law (2019) 96. 51 K. Dzehtsiarou and D. Coffey, ‘Suspension and Expulsion of Members of the Council of Europe: Difficult Decisions in Troubled Times’ (2019) 68 International & Comparative Law Quarterly 443; L. Mälksoo and W. Benedek (eds), Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge Univerisity Press 2017).

Global constitutionalism and international public authority  273 obstruct them where this is not happening. This amounts to a truncated, Italo-Western version of the rational choice approach, one which focuses on the interests of the regime and its stabilization, rather than the interests of the state or the population, however defined. As sizeable as these tendencies have become, it evidently does not provide a foundation for the law of international institutions that would be acceptable to democratic societies. B

International Public Authority versus Social Sciences Approaches

1 Global governance and transnational legal process The international public law approach shares three insights with global governance studies.52 First is the recognition of the significance of institutions and processes beyond the state. The most visible mark of their significance might be the degree of autonomy that international institutions enjoy vis-à-vis state governments.53 Second, research on global governance notes the importance of informality of many institutions, procedures and instruments. It stresses the need to go beyond established legal concepts that cannot grasp such informality.54 Third, as is obvious from the use of the term ‘global’ rather than ‘international’, global governance emphasizes the multilevel character of processes and interactions. We share these three insights and agree that these mechanisms should not be neglected but, rather, be made the object of legal reconstructions. We also share the idea that a convincing concept of law must be broader and more differentiated than the classic triad of treaty, custom, and general principles. And although we focus more narrowly on international phenomena, we have other levels of governance on the radar, especially because both the effectiveness and the legitimacy of international institutional activity, and of international public law, heavily depend on domestic public law. However, global governance studies display serious normative and cognitive shortcomings endemic in many liberal international relation theories, many of which come into view through the prism of public law. Global governance is mainly understood as a technocratic process concerned with ‘problem solving’.55 It is focused on pursuing defined goals effectively but is rather silent about how to define goals or about how to strike inevitable normative balances when pursuing any single goal. What is more, a concern for the workings of power relations is largely absent.56 On the cognitive side, global governance studies lack a conceptual framework for distinguishing and identifying those instruments that raise questions of legitimacy and those that do not.

52 Seminal: J. Rosenau, ‘Governance, Order, and Change in World Politics’, in J. Rosenau and E. Czempiel (eds), Governance without Government (Cambridge University Press 1992) 1. 53 I. Venzke, ‘International Bureaucracies from a Political Science Perspective: Agency, Authority and International Institutional Law’, in A. von Bogdandy et al (eds), The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Springer 2010) 67. 54 This distinguishes our approach from J. d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford University Press 2011), at 128–30. 55 Koskenniemi, supra note 45, at 241. On the related liberal bias of international organizations, see M. Barnett and M. Finnemore, ‘The Power of Liberal International Organizations’, in M. Barnett and R, Duvall (eds), Power in Global Governance (Cambridge University Press 2005) 161, at 163–69. 56 A-M. Slaughter, ‘The Accountability of Government Networks’, 8 Indiana Journal of Global Legal Studies (2000–2001) 347.

274  Handbook on global constitutionalism The same may be said of transnational legal process.57 The latter is characterized by an emphasis on law as a continuous process of consecutive decisions instead of a stable system of rules.58 It provides important insights as to why decisions are obeyed, whether for reasons of self-interest, identity or as a result of repeated interaction.59 Much like global legal pluralism,60 it accommodates the input of a host of new actors and develops a broader view on different sites for the generation of legal normativity beyond the classic realm of governmental interaction. Its main normative argument boils down to suggesting that the variety of many different processes sustains the normativity of the outcome. Precisely why this should be the case remains unclear. The public law approach responds to these limits of governance studies and transnational legal process with its focus on the exercise and justification of public authority. It thereby avails itself of the dual function of modern public law. Accordingly, public authority may only be exercised if it is based on an authorizing act (constitutive or enabling function), and its exercise controlled and limited by substantive and procedural standards (limiting function).61 For this reason, public law helps to translate concerns about the legitimacy of governance activities into meaningful arguments of legality. Work under the concept of global governance or transnational legal process is typically insufficient for this purpose because it does not provide a basis for the identification of those acts that are critical. Nor does it show how those acts may be framed in terms of law. 2 Critical approaches The normative implications that many studies of global governance and theories of transnational legal process draw – the more actors and the more forms of law, the merrier – meets with a strong critique from perspectives that highlight diffuse governance processes and informality as a fig-leaf for the exercise of power.62 Whereas advocates of global governance studies, transnational legal process, and global legal pluralism might view plurality and informality as mechanisms to break into the centres of state power, Martti Koskenniemi and others see it, above all, as the subjugation of that same power to vested economic interests. Against the move to informality, they uphold the legal form and formal language of the law as a possible shield against private power and a possible vehicle for progressive politics.63 They draw attention to how dominant interpretations in international law reflect power imbalances and

H. Koh, ‘Transnational Legal Process’, 75 Nebraska Law Review (1996) 181. F. Hanschmann, ‘Theorie transnationaler Rechtsprozesse’, in Buckel, Christensen and Fischer-Lescano (eds), Neue Theorien des Rechts (2006) 347, at 357. 59 Koh, supra note 57. 60 Cf. P. Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press 2012). 61 See below Section 3.B; see also N. Walker, Intimations of Global Law (Cambridge University Press 2015), at 90–91; B. Kingsbury, ‘International Law as Inter-Public Law’, in H. Richardson and M. Williams (eds), Moral Universalism and Pluralism (Nomos 2009) 167. 62 Chimni, supra note 2; A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005), at 115. 63 Koskenniemi, supra note 45, at 241; M. Koskenniemi, ‘The Politics of International Law: 20 Years Later’, 20 EJIL (2009) 7; with different background but similar direction, see E. Benveniśtî and G. Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’, 60 Stanford Law Review (2007) 595. 57 58

Global constitutionalism and international public authority  275 entrench biases.64 This has been particularly critical in international legal relations between the Global North and the Global South since colonial times.65 Oscillating between the progress narrative of civilization and racialized suppression, international law has facilitated the global expansion of the economic models of the North.66 Human rights provided little rescue.67 But the language of law, critical scholarship suggests, offers at least a marginal degree of resistance to such exercises of power in the name of economic efficiency or morality.68 Even if one does not share critical scholarship’s fundamental scepticism about legitimizing the exercise of power through law, the critical approach forcefully underlines the epistemological and political challenges that legal scholarship has to meet. Another important point stressed by critical scholarship is the political nature of the public– private divide. As Hans Kelsen has already shown with great clarity, the view that some fields are necessarily to be left to private ordering whereas only some others can be subject to public ordering is deeply ideological.69 American critical legal studies and feminist scholarship, in particular, have deepened and elaborated this insight.70 We agree that the public–private distinction has shielded and perpetuated relationships of dominance in the past and present by the pretence that they belonged to the private realm. However, as we further elaborate below,71 responses to this problem can and should proceed without giving up the distinction in its entirety. First, the private sphere is certainly not immune from governmental interference. Second, in contemporary legal practice, the public/private distinction has lost its static character. The public sphere extends over whatever issue the competent institutions decide it to extend. The private sphere provides no safe haven for oppressive relationships. Third, as we argue in the next section, the public/private distinction continues to exercise an important function for the identification and formulation of common interests. 3 International law and political economy A new generation of critical approaches has emerged in the context of multiple crises afflicting societies at the turn of the 2020s, ranging from the distant reverberations of the financial crisis to climate change. These approaches are grouped under the term ‘Law and Political

M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge University Press 2005); D. Kennedy, ‘Theses about International Law Discourse’, 23 German Yearbook of International Law (1980) 353. 65 For many: A. Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge University Press 2005); see also Boysen, Chapter 13 in this Handbook. 66 N. Tzouvala, Capitalism ss Civilisation. A History of International Law (Cambridge University Press 2020), at 44 et seq. 67 U. Baxi, The Future On Human Rights (Oxford University Press 2007); S. Moyn, Not enough: Human Rights in an Unequal World (Harvard University Press 2018); E. Weitz, A World Divided: The Global Struggle for Human Rights in the Age of Nation-States (Princeton University Press 2019); M. Goldmann, ‘Contesting Austerity: Genealogies of Human Rights Discourse’ (2020)(2020-09) Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-09 (2020). 68 M. Koskenniemi, The Gentle Civilizer of Nations (Cambridge University Press 2002), at 495. 69 H. Kelsen, Pure Theory of Law, translated by Max Knight (2nd edn, 1967), at 281–4. 70 D. Kennedy, ‘The Stages of the Decline of the Public/Private Distinction’, 130 UPLR (1981–1982) 1349, at 1352; N. Fraser, Unruly Practices: Power, Discourse, and Gender in Contemporary Social Theory (University of Minnesota Press 1989). 71 In detail, see Section 3.B.1 below. 64

276  Handbook on global constitutionalism Economy’ (LPE), and they seem the most likely heirs of critical legal scholarship. LPE owes much of its emergence to the high levels of poverty, racial injustice, inequality, and political polarization prevalent in the United States, deeming legal scholarship in law and economics or originalist approaches to constitutional interpretation complicit in them.72 It has resonated with many European scholars dissatisfied about the role of law in entrenching neoliberalism and environmental degradation.73 Hence, there is a common set of convictions uniting this still rather amorphous movement that centres on the principles of equality and democracy and seeks to recalibrate the relation between freedom and equality. It differs from classical critical scholarship by considering law not simply as epiphenomenal of political conflicts, but as a contingent discourse that forms these conflicts – hence enabling lawyers to pursue reform agendas.74 In a nutshell, it seems that researchers simply cannot afford to forego the potential of law for achieving justice. While one should not rush to equalize law with justice, discarding law as useless for the purpose of justice would leave it at the free disposal of the politically and economically powerful. One could argue that LPE in international law emerged from self-reflections in critical legal scholarship and its engagement with scholarship taking a Global South perspective, like Third World Approaches to International Law (TWAIL). Many international legal scholars in the Global South had expressed arguments like the ones that now resurface in LPE.75 Also David Kennedy has more recently highlighted the implication of international law in forming North-South relations.76 Meanwhile, LPE has mushroomed in international legal scholarship, particularly in contributions emphasizing the significance of equality for human rights enjoyment77 and international economic law.78 For the public law approach to international institutions, the rise of LPE implies that one cannot reduce international public law to formal or procedural principles alone; it needs to strive for fair and equitable outcomes. C

Public Law Approaches

A rich field of legal conceptualizations of international institutions seeks to implement the public law approach to various degrees. One can distinguish institutional, constitutional and

J. Britton-Purdy et al, ‘Building a Law-and-political-economy Framework: Beyond the Twentieth-century Synthesis’ (2019) 129 Yale LJ 1784; A. Harris and J. Varellas, ‘Law and Political Economy in a Time of Accelerating Crises’ 1 Journal of Law and Political Economy (2020) 1. 73 P. Kjaer (ed.), The Law of Political Economy: Transformation in the Function of Law (Cambridge University Press 2020); I. Kampourakis, ‘Bound by the Economic Constitution: Notes for “Law and Political Economy” in Europe’ 1 Journal of Law and Political Economy (2022) 301. 74 I. Venzke and K. Heller (eds), Contingency in International Law (Oxford University Press 2021). 75 See, in particular, M. Bedjaoui, Towards a New International Economic Order (UNESCO 1979). 76 D. Kennedy, “Law and the Political Economy of the World”, 26 Leiden Journal of International Law (2013) 7. 77 Baxi, supra note 67; J. Dehm, ‘Highlighting inequalities in the histories of human rights: Contestations over justice, needs and rights in the 1970s’, 31 Leiden Journal of International Law (2018) 871; S. Moyn, Not Enough. Human Rights in an Unequal World (Belknap 2018); I. Venzke, International Law and the Spectre of Inequality (2019), available at https://​cf​.bc​.uva​.nl/​download/​ oraties/​oraties​_2019/​Venzke​_Ingo​.pdf (last visited 18 February 2022). 78 J. Linarelli, M. Salomon and M. Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (Oxford University Press 2018). 72

Global constitutionalism and international public authority  277 administrative law approaches. By and large, they pursue the twofold intention of furthering the potential of international public authority while hedging its risks. None of these approaches laments the decline of the Westphalian order. Rather, they aim at rendering global governance more efficient as well as more legitimate. While important differences exist between these approaches, the common ground is considerable, and we think that elaborating this common ground propels a better exchange of ideas. In particular, we suggest that they can all work well with, and gain from, the notion of international public authority and an agreed set of legal principles to ensure its legitimacy and effectiveness. 1 International institutional law International institutional law focuses on international organizations as subjects of international law, describing both their externally relevant activities and their internal law with a view to carving out common principles embedded in the legal design and practices of all international institutions.79 For international public law, international institutional law provides a breakthrough as it features a concept that contains the first nucleus of international public authority. As is well known, according to international institutional law, an international organization requires the possibility of forming ‘a will of its own’ in the pursuit of its objectives.80 This is to be understood against the former understanding, which viewed international organizations as permanent intergovernmental venues, hence, as part of the domestic administration of the member states.81 The capacity of autonomous decision-making of international institutions enables them to formulate common interests for their member states. In this respect, international institutional law was mainly developed according to a functionalist understanding of international institutions. As Jan Klabbers has recently shown, the functionalist orientation of international institutional law stems from the insight that nations are heavily interdependent and therefore inevitably need to cooperate in permanent, non-sporadic ways. Paul Reinsch, who Klabbers identifies as the first scholar of international institutional law, embedded this approach into a progress narrative. He believed that de-politicized, technical organizations would have a calming effect on overbearing national interests, which would eventually contribute to world peace.82 Two world wars later, David Mitrany advocated institutions that would provide

C. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press, 2nd edn, 2005); J. Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2nd edn, 2009); H.G. Schermers and N. Blokker, International Institutional Law: Unity within Diversity (Martinus Nijhoff, 5th edn, 2011). 80 Cf. Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, Advisory Opinion, 8 July 1996, ICJ Reports (1996), at 75, para. 19; see also Schermers and Blokker, supra note 79, at para. 44. On the autonomy of international organizations, see R. Collins and N.D. White (eds), International Organizations and the Idea of Autonomy (Routledge 2011). 81 D. Kennedy, ‘The Move to Institutions’, 8 Cardozo Law Review (1968) 841. 82 J. Klabbers, ‘The Emergence of Functionalism in International Institutional Law: Colonial Inspirations’, 25 EJIL (2014) 645. See also P. Reinsch, ‘International Unions and Their Administration’, 1 AJIL (1907) 579. Connecting functionalism with the progress narrative advocated by Weber: J. Steffek, ‘Max Weber, Modernity and the Project of International Organization’ (2016) 29 Cambridge Review of International Affairs 1502. G.F. Sinclair, To Reform the World: International Organizations and the Making of Modern States (Oxford University Press 2017). 79

278  Handbook on global constitutionalism welfare services to their members, among them many newly independent states.83 Wolfgang Friedmann’s seminal work on the law of cooperation epitomizes the underlying paradigm shift in the focus of international law from concerns regarding state sovereignty to the welfare of the citizens and the self-preservation of mankind.84 While states would remain the principal subjects of international law, a supranational society created by global and regional international organizations with legal personality would rise to the level of an actor in its own right.85 Recognizing the vertical structure of international institutional law and its focus on common interests, Philip Allott designated it as ‘international public law’.86 Today, international institutional law holds great potential as a framing device for international public authority since international organizations are of enormous significance for public affairs in times of global governance. It is no wonder that this stream of research has greatly evolved as of late.87 New instruments, competencies, and procedures of international organizations have come into its focus.88 In order to live up to the challenges of global governance, international institutional law could easily be extended so as to encompass not only the activities of international organizations in a strict sense but also the actions of less formalized institutions, such as the Organization for Security and Co-operation in Europe, or non-binding instruments.89 The limits of the international institutional law approach lie elsewhere. Although this school of thought views the welfare of individuals as its overarching concern, it does not regard them as subjects of international law90 and is unconcerned about their freedom.91 Accordingly, the putatively technical character of their tasks – their advantage, according to Mitrany – shields them from requirements of additional legitimacy beyond state consent. The emergence of claims in world public opinion for such legitimacy shows that this view faces an increasing number of problems. Remarkably, Klabbers’ textbook presents international institutional law as being caught up in the tension between autonomous international institutions and member states. He leaves no space for the role of individuals.92 And, yet, he also builds on a strand of the public law approach that takes the individual most seriously – namely, constitutionalism.93

83 D. Mitrany, A Working Peace System (Oxford University Press 1943); D. Mitrany, ‘The Functional Approach to World Organization’, 24 International Affairs (1948) 350. 84 W. Friedmann, The Changing Structure of International Law (Columbia University Press 1964), at 12; see further A. von Bogdandy, Strukturwandel des öffentlichen Rechts: Entstehung und Demokratisierung der europäischen Gesellschaft (Suhrkamp 2022). 85 Von Bogdandy, supra note 84, at 37ff, 213ff. 86 P. Allott, The Health of Nations: Society and Law beyond the State (Cambridge University Press 2002), at 297. 87 See J. Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’, 26 EJIL (2015) 9. 88 Ibid., see also A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press 2007); Pauwelyn, Wessel and Wouters, supra note 2; D. Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford University Press 2005). 89 A good example for how this can be done is E. Alvarez, International Organizations as Law-Makers (Oxford University Press 2005). 90 Friedmann, supra note 84, at 40ff. 91 Recently, J. Alvarez, ‘Is Investor-State Arbitration “Public”?’, Institute for International Law and Justice Working Paper No. 6 (2016). 92 Klabbers, supra note 79. 93 Cf. Klabbers, Peters and Ulfstein, supra note 2.

Global constitutionalism and international public authority  279 2 Global constitutionalism The broadest strand of legal scholarship that deals with global governance phenomena from a public law perspective is global constitutionalism.94 Like international institutional law, it is driven by the intuition that a strictly horizontal conception of the international order needs to be supplemented by considerations for its more vertical structures.95 In the language of constitutionalism, and in contrast to international institutional law, these structures amount to a common order encompassing the entire international community. Thus, with the exception of functionalist approaches,96 most constitutional approaches ultimately base this order on the freedom of individuals and their capacity for self-determination.97 Global constitutionalism comprises a variety of strands. Whereas some authors use the constitutionalist approach to redefine the international legal order as a whole,98 others, closer to our concern, use it in order to develop a framework of principles governing international institutions.99 Scholars in this camp rely on an analogy with domestic law, advocating that activities of international institutions should be investigated in the light of the experience of domestic constitutional law in liberal democracies with its focus on freedom.100 Accordingly, global constitutionalism suggests that many of the standards of domestic constitutional law may be instructive for the legal regimes governing international public authority.101 While overly simplistic analogies must be avoided, global constitutionalism

94 See Lang and Wiener, Chapter 1 in this Handbook. For its ancient roots, see Walker, supra note 61, at 87–8. For its thrust, see A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, 19 Leiden Journal of International Law (2006) 579; see also the editorial A. Wiener et al, ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’, 1 Global Constitutionalism (2012) 1. 95 The contrast between horizontal and vertical perceptions of world order becomes apparent by cross-reading the separate opinion of President Guillaume and the joint separate opinion of Judges Higgins, Kooijmans and Buergenthal in the Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2000, ICJ Reports (2002) 35, at 63. 96 E.g., J. Dunoff and J. Trachtman, ‘A Functional Approach to International Constitutionalization’, in J. Dunoff and J. Trachtman, Ruling the World? (Cambridge University Press 2009), at 3. 97 Cf. A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Brill 2010), at 213; C. Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law’, 281 Recueil des Cours (1999) 9, at 161–2; A. Peters, ‘Humanity as the A and Ω of Sovereignty’, 20 EJIL (2009) 513. 98 Cf. J. Frowein, ‘Konstitutionalisierung des Völkerrechts’, in K. Dicke et al (eds), Völkerrecht und Internationales Privatrecht in einem sich globalisierenden internationalen System (2000) 427. This is classified as a semantic strategy, according to O. Diggelmann and T. Altwicker, ‘Is There Something Like a Constitution of International Law?’, 68 ZaöRV (2008) 623, at 632ff. 99 Lang and Wiener, Chapter 1 in this Handbook; M. Ruffert and C. Walter, Institutionalised International Law (C.H. Beck 2015); B. Fassbender, ‘The United Nations Charter as Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) 529; D. Cass, The Constitutionalization of the World Trade Organization (Oxford University Press 2005). 100 See, e.g., Peters, supra note 97, at 583–4. On freedom as the overarching concept of modernity, see Hegel, supra note 13; I. Berlin, ‘Two Concepts of Liberty’, in I. Berlin, Four Essays on Liberty (1969) 118; J. Rawls, A Theory of Justice (Clarendon Press 1972), at para. 32; Preamble of the UN Charter: ‘We the peoples of the United Nations determined … to promote social progress and better standards of life in larger freedom.’ 101 M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, 15 EJIL (2004) 907.

280  Handbook on global constitutionalism rightly stresses the importance for international public authority of core principles such as human rights, the rule of law and democratic inclusion.102 While we share global constitutionalism’s core intuition about freedom, about citizens as the ultimate subjects of legitimacy of multiple constitutional orders,103 and the concern for core principles, we depart from its more value-laden variants and, more generally, harbour some reservations about the use of the concept of constitution for the international level. Global constitutionalism, like constitutionalization, somehow suggests a progression towards a global polity or even federal union that appears problematic.104 It might imply a degree of hierarchy, closure and a quest for ultimate reasons that is unattainable – only think of the dazzling question of a pouvoir constituant in world society. Constitutional pluralism seeks to avoid this difficulty,105 but it is doubtful whether this is a viable approach for global constitutionalism, i.e. for social orders not characterized by shared background convictions and institutional frameworks for dispute resolution like the European Union.106 The decay of a unipolar geopolitical constellation that provided the basis for a liberal international order and its replacement with a multipolar, more confrontational one suggests scepticism towards the idea of global constitutional principles.107 3 Global administrative law A third approach to deal with the phenomena of global governance in a specifically legal way seeks inspiration from administrative law thinking rather than from constitutionalism. Here again, different varieties exist. Probably the most far-reaching one is the project of global administrative law, which suggests that much of global governance can be understood as administration and demands that it be regulated by administrative law principles such as transparency, participation, reasoned decision-making, and mechanisms of review.108 While some

M. Kumm et al, ‘How Large Is the World of Global Constitutionalism?’, 3 Global Constitutionalism (2014) 1; M. Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’, 8 Theoretical Inquiries 8 (2007) 9, at 22. 103 E.g., N. Walker, ‘The Idea of Constitutional Pluralism’, 65 MLR (2002) 317; A. Peters, ‘Dual Democracy’, in Klabbers, Peters and Ulfstein (eds), The Constitutionalization of International Law (2009) 263; J. Habermas, ‘Does the Constitutionalization of International Law Still Have a Chance?’, in J. Habermas, The Divided West (2006), 115, at 141–142. 104 I. Kant, Zum Ewigen Frieden (1795). 105 Seminal: N. MacCormick, ‘Beyond the Sovereign State’, 56 Modern Law Review (MLR) (1993) 1. 106 In this regard, with a view to global constitutionalism, see A. von Bogdandy, ‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’, 6 IJCL (2008), at 397; on the Kadi cases, see, e.g., M. Avbelj, F. Fontanelli, and G. Martinico (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge 2014). On constitutionalism within the EU, see Bogdandy, supra note 84. Radical pluralist approaches, by contrast, deny the existence of any overarching universal legal rules or the idea of overcoming different fragmented global legal regimes, see N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press 2011). 107 See G. Ikenberry, ‘The end of liberal international order?’ 94 International Affairs (2018) 7. 108 Kingsbury, Krisch and Stewart, supra note 2, at 28; R. Stewart, ‘Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness’, 108 AJIL (2014) 211; recently see also Benveniśtî, supra note 2; Walker, supra note 61, at 106. 102

Global constitutionalism and international public authority  281 scholars aim at the deductive development of such principles,109 others proceed inductively and use the normative reservoir of domestic or European administrative law.110 The common denominator of this strand of research – the emphasis on domestic administrative law – bears a great potential for innovation. Our approach corresponds inasmuch as we stress the usefulness of intra-disciplinary exchange in legal studies: the study of the law of international public institutions should be informed by the study of domestic public institutions.111 The full development of international law as international public law appears hardly feasible without building on national administrative legal insights and doctrines elaborated in the past century. Our approach differs from the global administrative law approach as we regard it as being too ‘global’. It risks effacing or blurring the distinctions that are essential to the construction, evaluation and application of norms concerning public authority. Our very term international public law stresses that the validity, legality, legal effects, and legitimacy of acts under international law depend on criteria that are specific to the international legal order. Whenever a legal issue comes up with respect to any act, the first step to tackle it legally is therefore to determine the legal order to which it belongs. Moreover, we wonder what would be the overarching legal basis of a global administrative law. Would it be general principles or would it have a status of its own, above positive law? The notion of global administrative law evokes a fusion of domestic administrative and international law that gives too little consideration to the fact that the validity and legal effects of international and domestic law follow very different rules. In addition, global administrative law hinges on the imprecise concept of administration. It casts its net very widely and extends its scope to the whole range of activities and actors on various levels. While it taps into a public law repertoire, it applies its standards not only to entities that qualify as international organizations but also to those that straddle the public/ private divide just as well as hybrid institutions or even private transnational bodies.112 What is then understood as administration is also extremely wide and, notably, includes the activity of international courts and tribunals.113 Global administrative law draws together very different institutions and acts that raise demands for legitimacy that are markedly different. Administrative principles may be part of the cure for some, but not for all. In contrast to global administrative law, as well as to international institutional law and constitutionalism, we place the concept of international public authority on centre stage. It allows us to focus on the specific requirements of typical instruments. Indeed, global administrative law is now using the concept of authority, and our elaboration will continue on this path.114

B. Kingsbury, ‘Omnilateralism and Partial International Communities: Contributions of the Emerging Global Administrative Law’, 104 Journal of International Law and Diplomacy (2005) 98. 110 R. Stewart, ‘US Administrative Law: A Model for Global Administrative Law?’, 68 Law and Contemporary Problems (2005) 63; D. Esty, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’, 115 Yale Law Journal (2006) 1490. 111 M. Jestaedt and O. Lepsius (eds), Rechtswissenschaftstheorie (Mohr Siebeck 2008). 112 Examples include the International Organization on Standardization or the Internet Corporation for Assigned Names and Numbers. 113 R. Stewart and M. Ratton Sanchez Badin, ‘The World Trade Organization: Multiple Dimensions of Global Administrative Law’, 9 IJCL (2011) 556. 114 Cf. A. Cassese, ‘Global Administrative Law: The State of the Art’, 13 IJCL (2015) 465. 109

282  Handbook on global constitutionalism

3

IDENTIFYING INTERNATIONAL PUBLIC AUTHORITY

This section elaborates the concept of international public authority. The function of this concept is to identify acts of international institutions that should be legally reconstructed according to the public law paradigm because they advance common interests in a way that impacts upon the freedom of others. This allows for a much broader legal reconstruction of complex social relationships compared to classical international law. A

International Character

Whether an act amounts to an exercise of international public authority, in contrast to domestic or supranational authority, depends on the provision it invokes as a legal basis, be it implicitly or explicitly. If this provision belongs to public international law, then such an exercise of authority is international. What then belongs to the realm of public international law? The established sources of treaties, custom, and general principles provide guidance in most cases. Some acts, however, are based on soft legal instruments – for example, the Basel Accords by the Basel Committee on Banking Supervision. Soft law created by states or international institutions should be included in the canon of possible legal bases because, in the context of global governance, it often plays a functionally equivalent role to hard law.115 The choice between soft law and hard law as a legal basis should not allow governments and international institutions to escape normative requirements, and, indeed, the respective legal regimes are often similar.116 The insistence on the distinction between domestic and international law is criticized for being too limited.117 We do not deny the global, multilevel or transnational structure of many policies. However, we see the more narrow focus as justified by two main considerations. First, reconstructive legal scholarship needs to respond to the basic structures of the law. As we argued in respect to global administrative law, legal analysis and legal argument should distinguish between domestic and international law and, therefore, also between domestic and international authority.118 This distinction is crucial to enabling a thorough analysis of the twin concerns of legitimacy and effectiveness in the pursuit of common interests. The validity, legality, legitimacy, and legal effects of an act depend largely on the legal order to which it belongs. Likewise, whenever the question arises whether the protection of common interests requires additional forms of authority, then the challenge of making such authority legitimate and effective varies with the legal order in which it is rooted. Nobody will claim that the exercise of international authority is legitimized in a way that corresponds to the mechanisms that legitimize domestic authority. Neither a world parliament nor a world government exists. Domestic courts treat exercises of international public authority differently from domestic

See Section 3.C below. Cf. Goldmann, supra note 17, at 387ff. 117 Cf. L. Viellechner, Transnationalisierung des Rechts (Velbruck 2013), at 287ff. 118 A. von Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, 9 German Law Journal (2008) 1375, at 1393. 115 116

Global constitutionalism and international public authority  283 authority, thereby granting international institutions wider discretion.119 Likewise, international institutions cannot regulate a certain issue in the same way as domestic institutions. Rather, they normally rely on the executive capacity of the domestic level. The second argument for our focus rests on a principled consideration of political freedom. International law and international authority have a unique potential for political inclusion. If politics and policies are to serve several polities, there is no other legal order that is capable of achieving a similar degree of inclusion. Notwithstanding the many conceptual and practical challenges of democratizing international institutions, there are no viable alternatives in sight. Hegemony, informal governmental networks or outsourcing to private institutions fare much worse in this respect. Thus, our choice for international law as the legal order that has the potential to be the most inclusive polity echoes Winston Churchill’s bon mot on democracy: ‘It’s the worst, except for all the others.’ B Publicness 1 The public–private distinction It is far more difficult to pin down what makes international authority public. Given the various meanings as well as trenchant critiques of the public–private distinction,120 this difficulty is not surprising, especially in light of the messy complexities that mire global governance.121 A distinction of this kind arguably does more harm than good, for example, by leaving the exercise of power in the private realm out of sight.122 We agree that it is impossible to understand the cosmos of global governance without considering private and hybrid actors. Yet the importance of such actors does not render the public–private distinction useless but, rather, confirms its significance. This dichotomy enables us to distinguish – to give but one example – entities as different as the UN and Blackwater (which is today known as Academi). It is undeniable that international institutions such as the UN or the World Bank operate under a different legal regime compared to transnational corporations. The public–private divide, with all of its problems, provides an important stock of knowledge to elaborate this difference. Granted, there are attempts at building overarching legal regimes, in particular, by using human rights.123 But even if some aspects of human rights apply directly to private institutions,124 a plethora of differences remain.125 The distinction between public and private law responds to a fundamental differentiation in modern societies. Most will agree that, whatever the eventual definitions, private action – in particular, private economic activity – and public action belong to different social spheres

119 E.g., Kadi, supra note 106; Bundesverfassungsgericht, Bananas, Case 2 BvL 1/97, Judgment of 7 June 2000; ECtHR, Bosphorus v Ireland, Appl. No. 45036/98, Judgment of 30 June 2005. 120 See Section 2.B.2 above. 121 Some even contest the feasibility of the distinction, see Section 2.A.3 above. See also L. Casini, ‘Down the Rabbit-Hole’: The Projection of the Public/Private Distinction beyond the State’, 12 IJCL (2014) 402, at 419ff. 122 Fraser, supra note 70. 123 Teubner, supra note 31; Viellechner, supra note 117. 124 OECD Guidelines for Multinational Enterprises, available at https://​www​.oecd​.org/​corporate/​ mne/​www​.oecd​.org/​daf/​inv/​mne/​48004323​.pdf (last visited 5 January 2023). From the rich theoretical debate, see Watt, supra note 33, at 400–2. 125 U. Kischel, Rechtsvergleichung (Beck 2015), at 345ff.

284  Handbook on global constitutionalism and must respond to different operational logics and justificatory requirements.126 Public and private law provide the legal frameworks for activities that follow different rationales. Most importantly, private law allows actors to act solely in pursuit of their self-interest, whereas public law requires a higher standard, often coined as the pursuit of a common interest. Though of continental European origin, the distinction has spread through the world of common law. It is important to note that the United Kingdom shares this understanding of public law.127 The experience of the USA is different, but no other legal order has a comparable tradition in regard to constitutional adjudication. And, even with respect to it, the twentieth century witnessed the consolidation of administrative law.128 Of course, there have been attempts to overcome the public–private divide, the most notable example being state socialism, but its consequences were highly dysfunctional. It is difficult to apply the distinction to certain features of global governance or to Chinese State-Owned Enterprises; however, that alone gives no reason to abandon it. The apparent hybridity of some institutions, often advanced as an argument against the distinction,129 rather reinforces it – any observation of hybridity requires an understanding of the individual components that render something hybrid. For instance, a hybrid car is a car that uses a combustion engine and an electric motor, and a mule is a cross between a horse and a donkey. There are, as always, difficult cases of qualification, but this does not undermine the utility of conceptual differentiations. 2 Publicness and common interest Concepts enable us to understand and deal with reality. Our overall aim is to provide a legal concept in line with calls in world public opinion for effective and legitimate international action that advances common, or public, interests. According to world public opinion, the public character of an act thus derives from its relation to common interests. It depends on the social sphere from which it originates. If the activity is part of the sphere where self-interest is a sufficient justification, the act is private; if it belongs to the sphere where common interests are predominant, it is public. We therefore define the publicness of international authority and international public law in accordance with the basic differentiation in modern societies. Of course, the differentiation is less clear in world society than in most domestic societies, but it should be apparent that the UN, the Basel Committee and the World Bank are categorically different from, say, Academi, Goldman Sachs, or Exxon. Contrasting this approach with other understandings of publicness further exposes its main thrust. In public international law, there is a widespread understanding that international law is public because it governs the relations between public institutions, with its opposite being

126 This goes back to Hegel, supra note 13, at paras 182ff. For contemporary society, cf. T. Parsons, The Structure and Change of the Social System (1951); N. Luhmann, Soziale Systeme: Grundriss einer allgemeinen Theorie (Akademic 1984); H. Arendt, The Human Condition (University of Chicago Press 1958), at 22ff; recently, see A. Honneth, Das Recht der Freiheit: Grundriss einer demokratischen Sittlichkeit (Suhrkamp 2011), at 317ff. 127 M. Freedland, ‘The Evolving Approach to the Public/Private Distinction in English Law’, in J.-B. Auby and M. Freedland (eds), La distinction du droit public et du droit privé: regards français et britanniques (2004) 101, at 105–6; see also M. Loughlin, ‘The Nature of Public Law’, in C. Mac Amhlaigh et al (eds), After Public Law? (2013) 11, at 14–15. 128 Most notably in the Administrative Procedure Act of 1946, 60 Stat. 237; see R. Stewart, ‘The Reformation of American Administrative Law’, 88 Harvard Law Review (1974–1975) 1667. 129 Alvarez, supra note 91.

Global constitutionalism and international public authority  285 private international law (or conflict of laws).130 But as global governance studies have shown, there are more actors involved than states. Another understanding uses the public–private distinction to define the competences of (domestic) administrative courts131 or a specific regime of (domestic) administrative responsibility.132 This is also not an option for the international realm since such institutions or regimes hardly exist there.133 Closer to our interest is the definition whereby ‘public’ refers to a relationship of subordination not justified by direct consent.134 However, the convoluted structure of most instances of global governance makes it nearly impossible to define ‘publicness’ in terms of hierarchy or asymmetric relationships. Moreover, hierarchy and asymmetric relationships imply an element of ‘authority’, and we do not wish to equate publicness and authority. According to yet another conception, an institution is public if it operates under a privileged legal regime. In the past, one function of public (or administrative) law was to protect administrative institutions against judicial review by the common courts. This definition is persuasive in light of the concerns articulated in world public opinion, given the broad immunity of international institutions in domestic courts and the scarcity of international review. Immunities raise doubts about the legitimacy of their acts. Indeed, some institutions advance policies that would not withstand the control of domestic courts, as the saga of the Kadi cases demonstrates.135 However, this immunity derives from the international character of those institutions. Therefore, it would make little sense to also use this feature for defining publicness. By contrast, in our context, it makes a lot of sense for publicness to turn on the pursuit of a common interest or common good.136 This understanding comes with a considerable pedigree.137 It already existed in antiquity, as reflected in the distinction in Roman law between ius publicum and ius privatum, although one should certainly not overlook the differences between Roman society and today’s society.138 For our purpose, the pursuit of a common interest hinges on the legal mandate, whatever its legal qualification, including soft law. We thus define an exercise of authority as public if the actor claims that the legal basis of the act mandates it to advance a common interest.

On this, see Section 2.A.1 above. Readers with a background in the common law should note that this function renders the public– private distinction highly important in many domestic legal orders. 132 C. Mac Amhlaigh, ‘Defending the Domain of Public Law’, in C. Mac Amlaigh et al (eds), After Public Law (Oxford University Press 2012) 103 (regarding para. 6 of the UK Human Rights Act 1998 (c42), which establishes responsibility for public entities only). 133 Exceptions include the administrative tribunals of international organizations. In detail, see Schermers and Blokker, supra note 79, at 462–7. 134 A. Cassese, ‘“Le droit tout puissant et unique de la société”: Paradossi del diritto amministrativo’, 59 Rivista trimestrale di diritto pubblico (2009) 879; Kelsen, supra note 69, at 281ff. 135 Cf. Avbelj, Fontanelli and Martinico, supra note 106; Kadi, supra note 106. 136 Although we use ‘common interests’ and ‘common good’ as synonyms, we are aware that they are linked to different traditions of political and legal thought. See A. Hirschman, The Passions and the Interests (Princeton University Press 1977). 137 E.g., Rousseau, Du contrat social ou Principes du droit politique (1762), book 1, ch. VI and VII; Hegel, supra note 13, para. 258; Rawls, supra note 100, at 35ff, 201ff. Recently, see J. Best and A. Gheciu, ‘Theorizing the Public as Practices: Transformations of the Public in Historical Contexts’, in J. Best and A. Gheciu (eds), The Return of the Public in Global Governance (2014) 15, at 32. 138 Arendt, supra note 126, at 38. 130 131

286  Handbook on global constitutionalism 3 The claim to advance a common interest The definition lends itself to legal operationalization because it refers to the legal basis of an act and is therefore open to legal interpretation. The first interpretative step is to determine the norm that the actor invokes explicitly or implicitly as a legal basis, followed by an interpretation of that norm to determine if it requires the pursuit of a common interest. Other conditions of legality that the act must meet are not relevant for the purposes of its classification as public. We focus only on the claim to have a mandate to pursue a common interest because the publicness criterion that we propose only defines the legal regime that determines the conditions for the legality of the act. In addition, for an act to qualify as public, it suffices that there is a reasonable presumption of acting under the claimed mandate. Whether the mandate actually exists and covers the activity is a different question – one of legality – which is to be settled subsequently in accordance with the respective substantive and procedural requirements. It does not affect its qualification as being public. As in the case of domestic legal orders, illegal exercises of public authority exist.139 This is where our definition differs from Benedict Kingsbury and Megan Donaldson, who require that an act meets certain substantive or procedural principles in order to be considered public.140 This complex definition serves another important function: to distinguish the common interest from the activities of public interest groups. Whereas such groups claim to further the common interest, they lack a specific mandate. Indeed, many public interest groups, such as Greenpeace or Transparency International, play an important role and contribute to the common interest. They may be mandated by their members, but they claim to advance interests of individuals that extend beyond their membership. International organizations, by contrast, are entitled to advance policies in the common interest. International as well as domestic law makes a clear difference in this respect. Of course, some might consider international organizations to be just as self-interested as private corporations and as demonstrating less public spirit than some non-governmental organizations. However, from a legal standpoint, the difference in the mandate to pursue the common interest is all too obvious. Our understanding of what makes an act public begs the question regarding how to define a common or public interest in a pluralistic world society. As Kelsen, critical legal studies, and feminism have shown, to define something as public is a highly political issue that has important repercussions.141 Several possibilities come to mind. One might resort to a list of issues believed to be too important to be left to the private realm. However, such a criterion is too vague and too contested. Jeremy Waldron, similar to Kingsbury and Donaldson, suggests certain elements of the public rule of law. Among them are the idea of a rule by legal rules, the limitation of discretionary powers and the availability of legal review.142 However, this approach certainly does not grasp what world public opinion sees as the core international

Mutatis mutandis, this idea has been applied by the International Court of Justice, in the Certain Expenses of the United Nations (Article 7, paragraph 2, of the Charter), Advisory Opinion, 20 July 1962, ICJ Reports (1962) 151. Only in cases of gravest shortcomings is the act null and void. Cf. C-275/10, Residex Capital IV CV v Gemeente Rotterdam, [2011] ECR I-13067. 140 B. Kingsbury and M. Donaldson, ‘From Bilateralism to Publicness in International Law’, in U. Fastenrath et al (eds), From Bilateralism to Community Interest (Oxford University Press 2011) 79, at 84. 141 See Section 2.B.2 above. 142 J. Waldron, ‘The rule of law in contemporary liberal theory’ 2 Ratio Juris (1989) 79. 139

Global constitutionalism and international public authority  287 common interests, namely poverty reduction, human rights advancement, environmental protection, and economic stability. In the end, it is only the public itself – that is, a social order and its institutions – that can define common interests. An actor may thus claim to articulate a common interest if it is mandated to act on behalf of a social order (including the international community). At first sight, this replaces one problematic definition with another: What is a social order? Two thousand years of political theory have dealt with this question.143 Given the deep cleavages in the discussion, it is advisable to rely on the law instead of tying the definition of publicness to a specific theory. This also allows for a plurality of approaches. At the same time, there is wide consensus that a community requires at least an institutional framework for the articulation of a common interest.144 That is a question of the interpretation of its mandate. Of course, many theoretical and empirical questions persist. For example, one might debate whether the international community is a community of states or of individuals or whether the UN General Assembly is mandated to articulate its interests.145 Be that as it may, the term ‘international community’, though contested, is well established in international law and politics, as is the term ‘community interest’.146 To sum up, publicness is established by reference to the legal mandate – hard or soft –that the act invokes explicitly or implicitly. If the mandate equips an international institution with the power to define and pursue a common interest, any authority that the institution might exercise in this frame should be qualified as public. But what is authority? C Authority To provide an understanding of the authority for international institutions is just as intricate. Traditionally speaking, public authority is equated with state power, sovereignty, and the legitimate means of coercion. On this account, international institutions would not exercise authority. However, many citizens experience international institutions as having a powerful impact on their lives. Our concept of international public authority is a scholarly response that elaborates such perceptions. It credits the fact that impact can have many faces other than physical coercion and overwhelming force, so that a broader definition of authority is needed. Inspired by world public opinion and the core idea of the public law approach, we take freedom to be the decisive criterion for broadening the concept of authority. Authority is defined as the acts based on international law that impact other actors’ freedom. Such impact may materialize by changing a legal position or by legally obliging a person to act in a certain

143 For a review of recent proposals, see M. Koskenniemi, ‘Projects of World Community’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (2012) 8. Further, see A. Paulus, Die international Gemeinschaft im Völkerrecht (Brill 2001), at 9ff; for a definition of publicness on the basis of discourse theory, see M. Goldmann, ‘A Matter of Perspective. Global Governance and the Distinction between Public and Private Authority (and Not Law)’, 5 Global Constitutionalism (2016) 48; in the context of the EU: von Bogdandy, supra note 84. 144 Note that their capacity to articulate a common interest is the reason why international organizations enjoy legal personality. See Ruffert and Walter, supra note 99. 145 For a sceptical outlook, see Paulus, supra note 143, at 326–8. 146 B. Simma, ‘From Bilateralism to Community Interest in International Law’, 250 Recueil des cours (1994) 221; Paulus, supra note 143, at 225ff; see also the International Law Commission, Articles on the Responsibility of International Organizations, Doc. A/66/10 (2011), Arts 33(1), 42(b), 48(1)(b).

288  Handbook on global constitutionalism way or to suffer a sanction, but it may also be factual. The impact may affect humans not only individually but also – as is usually the case with international public authority – collectively – that is, when an act addresses entities such as states.147 To posit freedom as the guiding idea is, of course, a choice, but it is a reconstructive one supported by both theoretical reflection and legal developments. In many legal orders, public law is guided by this idea. Freedom, as we understand it, refers to the freedom of individuals – that is to say, both their private and their public freedom. The public freedom of individuals consists, on the most abstract level, in meaningful inclusion in the political process that determines the common interest. Private freedom embraces the full development of the individual.148 This concept of freedom is far broader than that of liberty, which merely stands against interference with rights such as property rights. It squares neatly with the triad of obligations to respect, protect and fulfil in contemporary human rights law.149 Acts that impact on this freedom are so important that they require specific justification. The legal aspect of that justification is our topic. Our understanding of international public authority as international law-based acts impacting other actors’ freedom is broad, but it is distinct from yet broader concepts such as power, hegemony, dominance or leverage. Exercises of international public authority imply the claim to be mandated by international law to impact somebody else’s freedom. As is the case with publicness, this does not mean that an illegal act would disqualify as an exercise of authority. There can be illegal exercises of authority, and the act might become the object of a legal dispute. In many legal orders, it is crucial that an exercise of public authority (puissance public, öffentliche Gewalt) can be challenged as illegal and quashed by appropriate institutions without losing its qualification as an exercise of public authority. Similarly, it is worth reminding our readers that this understanding of authority is to be distinguished from legitimacy: authority implies a rebuttable claim to legitimacy.150 In this respect, our concept is in line with Joseph Raz’s influential understanding of authority.151 What does it take to affect freedom? The authority of domestic public institutions rests, according to received wisdom, on their competence to use physical coercion to make a person or entity act as they command. Sometimes, acts of international institutions are backed up by credible means of coercion, such as some UN Security Council resolutions.152 However, this is

See already von Bogdandy, Goldmann and Dann, supra note 118, at 1381–2. The four freedoms of Roosevelt, see Roosevelt, Four Freedom Speech, State of the Union Address, 6 January 1941; see also the preamble of the UN Charter. 149 Committee on Economic, Social and Cultural Rights, General Comment no. 12, 12 May 1999, para. 15; A. Eide, ‘Economic, Social and Cultural Rights as Human Rights’, in A. Eide, C. Krause and A. Rosas (eds), Economic, Social and Cultural Rights. A Textbook (Brill 2001) 9, at 23–4. 150 In international law, the two concepts are sometimes presented as synonymous, for example in the New Haven School, see J. Hathaway, ‘America, Defender of Democratic Legitimacy’, 11 EJIL (2000) 121; W. Reisman, The View from the New Haven School of International Law (Cambridge University Press 1992). 151 J. Raz, The Authority of Law (Oxford University Press 1979), 5ff; J. Raz, The Morality of Freedom (Oxford University Press 1988), 22ff, 53ff, 69. 152 E.g. SC Res. 678 (1990). Some might doubt that these acts can still be considered as the public authority of an international institution. We assume that this is the case so long as the institution is not just a mask for one hegemonic state. 147 148

Global constitutionalism and international public authority  289 not typically the case. We identify and explain three ‘softer’ and more common mechanisms through which international institutions might affect freedom.153 One type of mechanism that often provides policies with ‘teeth’, so to speak, are financial sanctions or benefits. Related is a further mechanism that ensures compliance via the threat of exclusion from the international community if a state does not heed the policies of international institutions. It rests on an important feature that undergirds international institutions’ authority: reputation. According to this logic, it is also possible to argue that non-binding or even non-legal acts can amount to exercises of international public authority in that they impact freedom.154 Whoever violates non-binding or non-legal instruments does not need to fear damages or reprisals. But they might face other, more indirect sanctions. Second, the authority of international acts can also rest on their capacity to shape the terms of international discourse. An important example is the effect of international acts on the distribution of argumentative burdens.155 The function of precedents is illustrative. International judicial decisions are not considered binding beyond the parties to the dispute.156 And, yet, the dynamics of legal discourse and the normative expectation that like cases should be decided alike trigger argumentative burdens for those who wish to make a legal argument.157 In order to understand such authority, it is important to widen the view towards the social context and discursive construction of authority.158 Third, acts of international institutions may further impact the freedom of others by influencing their frames, knowledge, and perceptions.159 Governance by information has become a particularly important instrument on the global level. Michel Foucault has analysed its function in the modern state.160 His research on gouvernementalité emphasizes that binding law is only one form of governing people. Once the modern state started aiming at governing the economy and people’s social life, it developed a multiplicity of further instruments in order to discipline people, to guide them and frame their mindsets.161 International institutions seek recourse to governance by information in order to advance international policies. Examples abound. The OECD provides comparative data about the performance of school policies. Its In detail: Goldmann, supra note 17, at 337–58. Presuming that all legal acts, hard and soft, are authoritative. J. Pauwelyn, R. Wessel and J. Wouters, ‘Informal International Law as Presumptive Law: Exploring New Modes of Law-Making’, in Liivoja and Petman (eds), International Law-Making (2014) 75, at 89. 155 I. Venzke, ‘Semantic Authority, Legal Change, and the Dynamics of International Law’, 12 No Foundations (2015) 1. 156 Statute of the International Court of Justice 1945, 1 UNTS 993, Art. 59. 157 I. Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press 2012), at 62–64; see WTO, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products – Report of the Appellate Body, 22 May 2014, WT/DS400/AB/R. 158 Cf. H. Hart, The Concept of Law (Clarendon 1994), at 254–259. See further I. Venzke, ‘Between Power and Persuasion: International Institutions’ Authority in Making Law’, 4 Transnational Legal Theory (2013) 354; d’Aspremont, supra note 54, at 192–4; Friedmann, supra note 84, at 71. 159 E. Goffman, Frame Analysis: An Essay on the Organization of Experience (Harvard University Press 1974); Regarding the psychological foundations, see R. Ryan and E. Deci, ‘Intrinsic and Extrinsic Motivations: Classic Definitions and New Directions’, 25 Contemporary Educational Psychology (2000) 54. 160 M. Foucault, Surveiller et punir. Naissance de la prison (1975), at 36. 161 M. Foucault, Sécurité, territoire, population (1977–1978) ; M. Foucault, Histoire de la sexualité (1976). 153 154

290  Handbook on global constitutionalism Program for International Student Assessment (PISA) publishes detailed reports every three years as well as a ranking list.162 The UN Development Programme developed the Human Development Index indicating the level of development, assessing the overall outcome of domestic politics.163 Which acts ultimately amount to exercises of international public authority hinges on the degree to which they impact freedom. Where to draw the line is a question of judgement or political choice. Our theoretical framework cannot substitute such judgment or choice, but it can inform it.

4

INTERNATIONAL PUBLIC LAW

Once an act is identified as an exercise of international public authority, it needs to meet the standards of procedural and substantive principles of international law. Legal scholarship may reconstruct a set of standardized instruments that facilitate the identification of acts of international public authority and render a legal regime applicable to them, thereby ensuring a basic level of legitimacy.164 This reconstruction proceeds in a dialectical fashion. As with legal principles generally, it relies on trends in the practice of international institutions that one might consider from the vantage point of freedom as particularly legitimate exercises of international public authority.165 Many of these principles overlap with those advocated by the literature on global constitutionalism and global administrative law.166 One can distinguish procedural and substantive principles. Procedural principles have been in the focus of much of the literature on global administrative law. One can summarize these principles with the triad of participation, transparency, and accountability. Each of these principles finds ample recognition in international institutional practice. Institutional practice has improved in respect of each of them over the last decades, even though much remains to be criticized.167 It is being argued that these principles only apply where they are in the member states’ best interests.168 Nevertheless, it stands to reason that many international organizations have introduced standards of participation, transparency, and accountability that apply

162 A. von Bogdandy and M. Goldmann, ‘Taming and Framing Indicators: A Legal Reconstruction of the OECD’s Programme for International Student Assessment (PISA)’, in K.E. Davis et al (eds), Governance by Indicators: Global Power through Classification and Rankings (2012) 52. 163 K. Davis, B. Kingsbury and S. Merry, ‘Indicators as a Technology of Global Governance’, Institute for International Law and Justice Working Paper No. 2 (2010), at 22ff. 164 Cf. Goldmann, supra note 17, at 399 et seq. 165 A. von Bogdandy, ‘The Past and Promise of Doctrinal Constructivism: A Strategy for Responding to the Challenges Facing Constitutional Scholarship in Europe’ 7 International Journal of Constitutional Law (2009) 364; Habermas, supra note 103. 166 A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, 19 Leiden Journal of International Law (2006) 579; B. Kingsbury and M. Donaldson, ‘Global administrative law’ (2015) Max Planck Encyclopedia of Public International Law, (Oxford University Press), mn 26 et seq. 167 Overview: Benveniśtî, The Law of Global Governance (Brill 2014); M. Goldmann, ‘Internationales Verwaltungsrecht’ in Eifert, Möllers and Voßkuhle (eds), Grundlagen des Verwaltungsrechts, Band 1 (3rd edn, 2022), 325, 387. 168 I. Lischewski, Lawful by Design. Measuring Procedural Justice in Global Governance (Cambridge University Press 2022).

Global constitutionalism and international public authority  291 across the board, not least in the hope of tapping world public opinion to render their policies effective. The advantage of procedural solutions is that they skirt the contingency of substantive choices to some extent. They rest on the conviction that just outcomes will derive from just decision-making processes and adequate control mechanisms. However, the persistant high levels of inequality within and among nations and the frequent failure of states and international institutions in adequately addressing global threats makes it necessary to turn to substantive principles. A review of international practice, which would exceed the scope of this chapter, would probably yield three recurrent substantive principles: human rights; sustainability; and common but differentiated responsibility. The application of core human rights to international institutions is established in legal doctrine.169 This applies even though responsibility for informal institutional structures is difficult to come by,170 and despite the deficits in international institutional practice.171 In fact, certain deficits in implementation do not affect the legal status of principles. Moreover, sustainability has mushroomed as a substantive standard for global justice. In essence, it demands equal respect for economic, environmental and social factors. Spreading from environmental law172 to finance173 and development,174 it has become a meta-principle that addresses essential interests common to the international community, while skirting fundamental disagreements regarding other constitutional principles like human rights and democracy. Lastly, negotiations in the frame of the UN Framework Convention on Climate Change are guided by the principle of common but differentiated responsibility.175 It is not entirely without precedent in international law because the economic power and size of countries have played a role in a number of respects for decades, for example with regards to membership contributions. The novelty is that it now modifies the idea of sovereign equality if it comes to treaty obligations in regimes with a highly distributive character.

5 OUTLOOK Some might consider that the project of translating world public opinion into international public law to strengthen multilateral institutions is too reminiscent of the hopes triggered by 169 E.g. F. Mégret and F. Hoffman, ‘The UN as a Human Rights Violator-Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Hum Rts Q 314; D. Bradlow, ‘The World Bank, the IMF, and Human Rights’ (1996) 6 Transnational Law and Contemporary Problems 47. 170 Cf. Court of Justice of the European Union, Joined Cases C-105/15 P to C-109/15 P, Mallis et al. v European Commission and European Central Bank, judgment of 20 September 2016, ECLI:EU:C:2016:702. 171 P. Reinisch, International Organizations before National Courts (Cambridge University Press 2000) 169 et seq. 172 UNGA, Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. I), 12 August 1992, Annex I, Principle 1. 173 For particulars, see J. Bohoslavsky and M. Goldmann, ‘An Incremental Approach to Sovereign Debt Restructuring: Sovereign Debt Sustainability as a Principle of Public International Law’ (2016) 42 Yale Journal of International Law Online 13. 174 Cf. the UN Sustainable Development Goals: https://​sdgs​.un​.org/​goals. 175 C. Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 American Journal of International Law 276.

292  Handbook on global constitutionalism the fall of the iron curtain. Since then, concepts such as state power, bilateralism, geopolitics or realism have crept back to the forefront of global politics.176 Given the impotence of international institutions in the light of pressing crises such as the climate crisis, global health risks and their impact, armed conflict in many parts of the world, or the refugee crisis on the Mediterranean Sea,177 a theory of international public authority might be regarded as insufficient and myopic. However, the international public authority approach neither suggests, nor implies, a progression to a harmonious world wisely regulated by illuminated international institutions. Far from it. As set out at the beginning, our basic stance reflects the ambivalence of world public opinion. More importantly, many international institutions, while impotent in some respects, continue to impact people’s lives in many ways. The International Monetary Fund (IMF), for instance, is far busier now than in the decade preceding the global financial crisis. And the negotiations in the framework of the Paris Agreement, whatever their ultimate fate, show that political projects for powerful international institutions are not a relict of the past. Many individuals have an acute awareness of international public authority. They mistrust the policies of international institutions while calling on them to improve their lot. The international public authority approach considers this as both a rational and a realist reaction and tries to give it a legal frame.

W. Mead, ‘The Return of Geopolitics: The Revenge of the Revisionist Powers’, 93 Foreign Affairs (2015) 69. 177 See Lang and Wiener, Chapter 1 in this Handbook . 176

PART IV PRINCIPLES AND PRACTICES

20. Global constitutionalism and the rule of law Mattias Kumm

INTRODUCTION The rule of law is a political ideal whose widespread political endorsement across the globe is complemented by a great deal of disagreement about its content. That disagreement is not only a function of different legal traditions emphasizing different elements as central to the ideal, reflecting particular institutional and ideological histories.1 Scholars also debate more generally whether the rule of law is a thin ideal, focused primarily on formal features of the law, perhaps complemented by certain minimal institutional requirements, or whether it is a thicker ideal, including further commitments to democracy and human rights. These disagreements, I argue, are ultimately about the nature and moral point of the rule of law as an ideal. In order to gain a better understanding of what is distinctive about the rule of law as an ideal in the constitutionalist tradition, what is at stake in these disagreements and how best to resolve them, the following first engages in a ground-clearing exercise and negatively distinguishes and contrasts the rule of law to three related but distinct ideas: the rule by law, the rule of men (or persons), and the rule of reason. Then the chapter spells out in more detail a positive conception of the rule of law tied to global constitutionalism, again proceeding in three parts. First, it reaps the fruits from the ground-clearing exercise and describes the ideal of the rule of law in general conceptual terms clarifying its moral point: The rule of law is an ideal that is focused on the conditions that law must fulfill in order to actually have the authority it claims to have. Second, it lays out what that means in more concrete terms in terms of domestic constitutional requirements, before describing some of its implications for critically assessing and progressively developing the global legal order.

THE RULE OF LAW OR WHAT? THREE DISTINCTIONS The Rule of Law, Not the Rule by Law Positive law is not just and not even primarily a constraint on power, but a way of organizing and enhancing its effective exercise. Even though power can also be exercised in other ways – for example, by drawing on purely physically coercive means of the police and the armed forces or by constructing algorithms or interface structures that effectively limit choices an individual is able to make in a specific domain – the distinctive feature of the law is that its effective operation presupposes engagement with human agency. Law seeks to guide and constrain human behavior by engaging its addressees as agents and demanding compliance with

1 For a comparison of the German Rechtsstaatsprinzip, the British Rule of Law and the French Etat de Droit, see Loughlin (2010, pp. 312–41).

294

Global constitutionalism and the rule of law  295 its requirements.2 In engaging human agency, law is an important tool for organizing officials coherently and enlisting compliant legal subjects in the government’s cause. Rule by law will in many contexts be an attractive option for the powerful to structure the effective exercise of power. From the German Empire in the late nineteenth century to the Communist Party in China today, resistance to human rights and genuine competitive democracy may well go hand in hand with an embrace of law, legal forms and institutions as a way of exercising power. If leaders want to enhance their power and profit from the transaction-cost reducing potential of rule by law, a number of basic formal and institutional features will be of interest to them. First, the formal features of the law, whose moral significance is often emphasized by legal theorists, are exactly the features that make law an effective and favored mechanism for the exercise of power. Lon Fuller, for example, famously argued that eight formal principles that ideally characterize law – its generality, publicity, prospectivity, intelligibility, consistency, practicability, stability and congruence – constitute law’s ‘internal morality’.3 What is convincing about that claim is that substantively just and fair laws would do well to also exhibit these formal features to an appropriate degree, if they are to fulfill their purpose. But these formal features of the law would also make unjust laws more effective. Ex post facto laws, secret law, contradictory laws and so on are unable to effectively guide behavior and engage human agency. Whatever else they might be, Fuller’s formal principles are first and foremost of instrumental significance. If those in power want to benefit from the transaction-cost reducing potential of rule by law and enlist the addressees of the law for their purposes, making them complicit in their own domination, they need to respect these formal principles. The complicated relationship between what Fuller calls law’s internal morality and its use as an instrument of power is not just a feature of Fuller’s eight principles. It is also a feature of courts. A powerful elite running a large and diverse country would do well, in many instances, to also establish impartial and independent tribunals enabling individuals to complain about transgressions of the law by other lower officials and individuals. The availability of legal remedies before independent and impartial courts is not just a morally attractive way to secure the rights of individuals against official abuses. It is also an effective instrument to use the individual and his interests to ensure that officials – the agents of the powerful – actually do their job and implement the positive directives enacted by the powerful, instead of following their own agendas. In that way courts with appropriate jurisdiction and individuals who have standing to bring cases against officials are a cost-effective and decentralized way to ensure official discipline and rein in agency costs.4 Whatever else the moral point of the rule of law may be as a positive ideal, it requires more than rule by law. At a minimum, its point is negative: ‘to prevent the law from turning into a sheer form of domination, a manageable servant to political monopoly and instrumentalism’ (Palombella 2010, p. 3). For that more than formal principles and basic judicial protection is required.

2 That law operates through human agency means that it presupposes the possibility of noncompliance, even if noncompliant behavior is generally subject to the threat of sanctions. For a recent discussion on the relationship between law and the threat of sanctions, see Schauer (2015). 3 Fuller (1969). 4 For an analysis of a wide range of constitutional rules from this perspective see Holmes (2012, pp. 189–215).

296  Handbook on global constitutionalism The Rule of Law, Not the Rule of Men So what safeguards might there be to ensure that law will not be used merely as an instrument of domination by the powerful, even when the powerful rule by law? One response to that challenge insists that what matter ultimately are the rulers. To the extent rulers rule by law, the decisive question is whose will should be the law? On the one hand, there is the issue of numbers. Should the will of one person, a small group or a majority determine what the law is? Should the command of a sovereign monarch be law or should the law reflect the will of the majority as it is established in a legislative process? On the other hand, the focus might be on the moral qualities of the rulers. What matters, it has been claimed, is that those who wield power (and use law as an instrument of power) are virtuous. Only if philosophers become kings or kings become philosophers can justice prevail and arbitrary and capricious power be banished, Plato claimed. His central treatise, The Republic, is a book about the education of the philosopher rulers (Plato 1969, Book V, XVIII). In contemporary times, Confucian ideas of virtue are resurrected by the Communist Party in China to defend the rule of what is claimed to be a meritocratic elite.5 Talk of virtue has the practical function of detracting both from the question of who is qualified to make the determination whether someone has the virtues required for a particular position of power and what that implies with regard to concrete, but inevitably contested policy choices. What all of these positions have in common is that they defend some version of the rule of persons, not of law. So what might it mean for law to rule? Here again the negative answer is easier to describe than the full-fledged positive ideal: The idea of one person or a group of persons ruling over another implies that the will of one or one group can bind the rest. Insisting on the rule of law rather than the rule of persons means rejecting a conception of law that ties the law to the will of an individual or a group of rulers. The idea of the rule of law implies a rejection of any purely voluntarist account of law, whether those who do the willing be a sovereign monarch, a meritocratic elite of functionaries rising through the ranks of a vanguard party, or a majority of the people. This just raises new questions: is it not always the case that persons make law and interpret the law? If so, in which way is a strictly non-voluntarist account of law plausible? The Rule of Law, Not the Rule of Reason (Recta Ratio) One way to make a non-voluntarist conception of law plausible is to conceive of it as closely tied to reason. But if the rule of law is incompatible with the rule of persons, it is also a mistake to identify it with the rule of reason (recta ratio). The rule of law as a modern ideal is deeply connected to an idea of legality that emphasizes the centrality of positive law. Natural law or justice is not a helpful point of reference, because the point of law is to settle authoritatively what is to count as just among persons who may reasonably disagree about what that requires in specific circumstances (see Waldron 1999). If there is a consensus among contemporary jurisprudential thinkers it is that generally the justness of a norm is neither a necessary nor sufficient condition for it to be recognized as law. Unjust law is not a contradiction in terms, nor is the idea of a just norm not recognized as law. The rule of law as an ideal is not simply



5

For a discussion see Bell (2015).

Global constitutionalism and the rule of law  297 the ideal of good and just law. Gustav Radbruch might be right to insist that as a conceptual matter we must understand law as aspiring to justice (see Radbruch 1932), but the rule of law does not require that aspiration to be fully realized. That leaves a puzzle: if the rule of law is not compatible with an account of legality that is merely formal or voluntarist and does not simply embrace an ideal of natural law or justice either, then how can we make sense of it? It does not help to answer that question by insisting on the idea that the rule of law is directed against the arbitrary exercise of power. The question then becomes what exactly constitutes an arbitrary exercise of power. The idea of ‘arbitrariness’ is not an answer, but just another way of asking the question. The challenge is to flesh out the idea of arbitrariness in a way that does not reduce it to either a minimalist set of formal requirements connected to Fuller’s ‘internal morality of the law’, or ‘the will’ of a person or group of persons, or a maximalist idea of justice, which makes the idea of the rule of law trivial by reducing it to the idea of the rule of just law. In light of the discussion of the distinctions between the rule of law, on the one hand, and the rule by law, the rule of men and the rule of reason, on the other, it is thus possible to formulate the question more clearly: what might an ideal of the rule of law that requires the non-arbitrary exercise of power amount to, that provides the resources to identify and criticize abuses of law as a mere instrument of power, but does so from a perspective that is internal to the law and not simply from the perspective of justice?

A FRESH START: A CONSTITUTIONALIST CONCEPTION OF THE RULE OF LAW The Rule of Law, Law’s Claim to Legitimate Authority and Arbitrariness The conceptual contours of the normative space that is occupied by a political ideal of the rule of law is best defined by the distinctive claim that law makes. The distinctive claim that law makes is its claim to legitimate authority.6 Law implicitly insists that you are obligated to do what it requires, irrespective of what you believe justice requires. If the law establishes a speed limit of 130 kilometers per hour, it is irrelevant that you rightly believe that you could also exercise reasonable care and drive safely doing 200 kilometers per hour under the circumstances, given your superior driving skills, the excellent road conditions and the technical features of the car you are driving. The fact that the law requires you not to drive more than 130 kilometers per hour settles the issue. The duty to do what the law requires replaces whatever other considerations you deemed to be relevant for guiding your behavior. As Raz (1979) puts it, legitimate authority provides exclusionary reasons for action. That is what it means for law to claim authority. How then is law’s claim to legitimate authority connected to the ideal of the rule of law? The problem of law is that even though it always claims authority, it does not necessarily have the authority it claims to have. Whether or not law actually has the authority it claims to have is a contingent question. The most plausible way to understand the distinct ideal of the rule of law, I propose, is that it seeks to define the conditions under which law actually has the On this point, I agree with Joseph Raz (1979, pp. 28–33). Linking law conceptually to claims of authority is more precise then linking law to a ‘claim to rightness’ (Alexy 2010) or an ‘aspiration to justice’ (Radbruch 1932) or other ways of fleshing out the ‘internal point of view’ (Hart 1960[2012]). 6

298  Handbook on global constitutionalism authority it claims to have. A legal and political system that effectively institutionalizes the rule of law is one that fulfills the conditions that need to be fulfilled for law to actually have the authority it claims to have. The content of the rule of law thus becomes a function of the normative grounds that justify its claim to authority. A conception of the rule of law is thus dependent on a conception of legitimate authority. Connecting debates about an adequate conception of the rule of law to the conditions under which law rightly claims legitimate authority is a way to reframe debates about the rule of law and the prevention of arbitrary power: If you believe, as arguably Kant did, that legitimate authority is tied to the establishment of a positive legal order of any kind (see Weinstock 2017), then the minimal formal requirements for the existence of such a positive legal order are the relevant requirements for an ideal of the rule of law. As a corollary, nothing the law requires would count as arbitrary in the relevant normative sense of undermining law’s claim to authority. Arbitrary power would simply be power not exercised legally. If, on the other hand, you are a philosophical anarchist and believe that law only obligates to the extent it accurately traces what justice requires, then your ideal of the rule of law will insist on a close nexus between law and justice (Wolff 1970). Anything that does not comply with what justice requires, would be arbitrary in the relevant sense. The criteria for arbitrariness that informs the ideal of the rule of law is thus a function of what it takes for the law to actually have the authority it claims to have. Global Constitutionalism, Rule of Law and State Constitutional Requirements However, what are the criteria for arbitrariness if you are neither a Kantian legalist nor a philosophical anarchist? What if you are a constitutionalist? That question is of particular relevance, given that the basic ideas drawn from the constitutional tradition of the American and French revolutions have effectively been adopted by a majority of contemporary constitutions on all continents and are reflected in universally binding human rights law. In that sense the universalist project of eighteenth-century revolutionaries in France and the US after World War II and after the end of the Cold War has become a global project. In the following, it must suffice to describe rather than derive and argue for what I take to be the best understanding of constitutionalism in the contemporary global context, as it relates to standards of legitimate authority.

DEFINING THE CONSTITUTIONALIST STANDARD OF LEGITIMACY In the constitutionalist tradition, law actually has the legitimate authority it claims if, and only if, both in terms of the procedure used and results reached, it is justifiable in terms of public reasons that those over whom laws claim authority might reasonably accept as free and equals (the positive formulation) or cannot reasonably reject as free and equals (the negative formulation), given reasonable disagreement about what justice and good policy requires. That is, given that there is reasonable disagreement among free and equals about what justice and good policy requires,7 legitimacy cannot plausibly be tied to justice actually being achieved. What



7

The modern classic here is Waldron (1999).

Global constitutionalism and the rule of law  299 is required is that the procedures used and outcomes reached can be understood as good faith reasonable effort to do justice to free and equals. That is the case if, and only if, those who are addressees of the law might reasonably be imagined as accepting these results as free and equals. If they can be imagined as reasonably accepting these results, it would be unreasonable for them to reject them, even if they disagree with them in fact. Note how this conception of constitutionalist legitimacy yields a particular understanding of arbitrariness that goes beyond compliance with legal formalities without insisting on full-fledged substantive justice: A legal imposition is arbitrary in the relevant sense if and to the extent it is not justifiable to those on whom it is imposed as free and equals. A legal imposition may be reasonably justifiable, even if it is not the best, fairest and most just substantive solution to a given problem and even if it follows a procedure that is not the best, fairest and most just.

FROM STANDARDS OF LEGITIMACY TO REQUIREMENTS OF RULE OF LAW Having connected the ideal of rule of law to the conditions under which law actually has the authority it claims to have, and describing the standards for legitimate authority in the constitutionalist tradition in abstract form, it is possible to move on to ask in more concrete terms, what constitutional requirements the law has to fulfill to actually have the authority it claims to have. That is, what are the concrete normative requirements of the rule of law in the constitutionalist tradition understood in this way? What is the conception of constitutional legality that fully reflects a commitment to the rule of law?8 The following list puts forward seven requirements that will simply be presented here, without providing an argument as to how and why each plays a necessary role to operationalize the abstract standard of legitimacy described above. The first three concern basic institutional or procedural requirements, the second three concern substantive rights and the last requirement concerns the legitimacy conditions connected to ensuring respect for the wider international community.9 1. All legislative decisions of significant weight for those affected by it have to be made by representative institutions, whose members were elected in free and fair periodic elections based on an equal right to vote. 2. All acts of public authority are subject to judicial review by an independent and impartial tribunal with the power to provide effective remedies, allowing all persons appropriately affected by acts of public authorities to contest decisions as violative of their procedural or substantive rights in a fair proceeding.

8 If the point of constitutional legality is to establish the conditions that ensure that law actually has the authority it claims to have, the teleology of constitutional legality is identical to the teleology of the rule of law. On the more general question of the relationship between concepts of law and the Rule of Law see Waldron (2008). 9 The grounds for cosmopolitan dimension of constitutional legitimacy are developed in Kumm (2013).

300  Handbook on global constitutionalism 3. All administrative decision-making must meet due process requirements, among other things generally ensuring that addressees of administrative acts are put on notice and provided with an opportunity to comment on actions affecting them. 4. Rights enabling individuals to contest whether any infringements of liberty are justifiable. 5. Rights enabling individuals to contest whether any distinction made between them are justifiable or violate the principle of equality. 6. Rights enabling individuals to contest the absence of meaningful possibilities to exercise negative rights (social and economic rights, as well as negative rights interpreted as also establishing positive protective duties). 7. Constitutional provisions requiring constructive engagement with the wider international legal order of which it is a part, both in terms of enabling cooperation and participation in treaty regimes and international institutions and in terms of requiring the domestic enforcement of international law, subject to basic constitutionalist requirements.10 Rule of Law, Global Constitutionalism and Law beyond the State If the rule of law is focused on precluding the arbitrary exercise of power, its scope cannot be limited to the state level, because power is exercised also beyond the state: by powerful state actors, by international organizations such as the European Union or the United Nations, or by multinational corporations. As discussed above, a fully developed conception of the rule of law beyond the state depends on an account of legitimate authority of law beyond the state. This is not the place to recapitulate the wide-ranging literature on what the legitimacy of law beyond the state requires. However, it is possible to discern a set of basic ideas that inform how those committed to global constitutionalism identify, structure and interpret legal materials and implicitly understand the legitimate authority that law claims.11 In the following I first briefly describe three core ideas connected to an international rule of law before critically discussing some often articulated concerns about the rule of law beyond the state.

Contrary to widely made implicit assumptions in constitutional theory and practice, national constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is integrated into and relates to the wider legal and political world. The drawing of state boundaries and the pursuit of national policies generate justice sensitive externalities that national law, no matter how democratic, cannot claim legitimate authority to assess. It is the point and purpose of international law to authoritatively address problems of justice-sensitive externalities of state policies. International law seeks to help create the conditions and define the domain over which states can legitimately claim sovereignty. States have a standing duty to help create and sustain an international legal system that is equipped to fulfil that function. Only a cosmopolitan state – a state that incorporates and reflects in its constitutional structure and foreign policy the global legitimacy conditions for claims to s­ overeignty – is a legitimate state (Kumm 2013, p. 605). 11 The ideal of the rule of law in the global constitutionalist tradition competes with two quite different positions found among international lawyers, both traditionally associated with positivism: voluntarist statism (all international law is to be understood as emanating from the consent of each state to be bound) and conventionalism (practices of recognition engaged in by relevant officials tell us how to identify, structure and interpret legal materials). For a contemporary reformulation of the latter see d’Aspremont (2011). For a general discussion see Kammerhofer (2015). 10

Global constitutionalism and the rule of law  301

THE INTERNATIONAL RULE OF LAW AS AN IDEAL: THREE DEFINING FEATURES Global constitutionalists imagine international law as the law of an international community constituted by law. Three structural features are central to an international law imagined in this way. First, the point of law in the constitutional tradition is to make collective action possible to shape the world, rather than just be subjected to it. This is also true for law beyond the state. One of its core points is to build capacity for collective action, to overcome coordination and cooperation problems and shape the world and secure the production of global public goods (Petersmann 2017). That is why those engaging with international law from the global constitutionalist position tend to embrace and seek to foster enabling capacities of multilateral institutions and emphasize non-consensual forms of law-making and development, whether through customary international law or the interpretation of general principles of law. The paradigmatic form of international law is not the transactional bilateral treaty based on the consent of each state to be bound, and the legitimacy of international law does not depend on the will of a state to be bound. Instead other participatory jurisgenerative processes tend to be highlighted. Second, sovereign states have a central role to play, but the role they play is circumscribed by international law with regard to both its external and internal functions. Externally, states serve the function to mediate the national and the global by engaging the wider global community, participating in the international jurisgenerative process and by faithfully executing international law within its jurisdiction. With regard to its internal function international law has pierced the veil of sovereignty and requires states to relate to those within its jurisdiction in a way that respects constitutional principles. States have the function to establish the legal framework within which those permanently under its jurisdiction practice self-determination, both individually and collectively. Their core internal function is to create institutions, procedures and practices that ensure that the rights of those within their jurisdiction are respected, protected and fulfilled. Fundamentally the individual person – as free and equal – is the ultimate point of reference for the justification of public authority, not the nation, not a community of faith, not a class and not a culture or civilization. Third, a commitment to the rule of law is connected to the general prohibition of war as a way of settling disputes. Except for the case of a state defending itself against an armed attack (see Art. 51 UN Charter), the use of force is prohibited (see Art. 2 IV UN Charter) unless specifically authorized by the UN Security Council (see Art. 42 UN Charter). Disputes are to be settled peacefully (see Art. 2 III UN Charter), if need be by a court or tribunal.

THREE CHALLENGES It is possible to identify three concerns that are raised about an international law imagined in light of an ideal of the rule of law that has such a structure. They relate to fragmentation and legal pluralism in the global legal order (1); deep diversity (2); and the priority of power (3). The significance of the first two, I argue, is widely exaggerated as concerns for the rule of law, whereas the third is too often misunderstood.

302  Handbook on global constitutionalism A great deal has been made in recent decades of legal pluralism and the fragmentation of international law as a problem for the rule of law. Legal pluralism can refer to different things. On the one hand, it can refer to a plurality of sources. On the other hand, it might refer to a plurality of legal systems. With regard to a plurality of sources, the issue is not just that in international law there are different sources with no generally recognized hierarchies between them: treaties, customary international law and general principles coexist on the same level. The past decades have seen a diversification of law-making and law-interpreting actors as well as the expansion of the scope of international legal regulation. A wide range of new actors, international organizations with law-making powers (see Alvarez 2005) or courts and tribunals (see Romano et al 2014), making decisions have joined the scene.12 The plurality of sources may become a problem, if that plurality meant that the system becomes incoherent or it establishes contradictory requirements. It would be a problem for the rule of law, if addressees of the law were to find themselves in a situation where they are confronted with competing legal norms, one requiring that A be done and another prohibiting A. A well-developed legal system usually has the resources to integrate a plurality of sources establishing rights or duties by establishing secondary norms that determine when and under which circumstances a norm takes precedence over another. A centralized legal system, as it characteristically exists on the state level, would typically have a constitution establishing the highest norms and centralized institutions to legislate and adjudicate issues, when conflicts arise. However, international law is not centralized in that way. It is more fragmented. Notwithstanding this fragmentation the plurality of sources of law is not generally a problem, because there are adequate legal resources to address these kinds of conflicts: There are some legal hierarchies (jus cogens norms, Art. 103 UN Charter), there are other conflict rules (the more specific rule prevails (lex specialis), the rule enacted last in time prevails (lex posterior)), as well as the usual techniques for interpreting norms in a way that preclude direct conflicts between them.13 Not surprisingly, and notwithstanding a great deal of academic writing on this issue, real conflicts are few and far between. More challenging is the existence of a plurality of legal systems. Does it not undermine the rule of law, that there can be legally irresolvable conflicts between different legal systems? What if EU law requires something that the law of a member state prohibits constitutionally? What if UN law requires something that violates EU law? The basic assumption underlying much of this discussion is that each legal system determines what legal obligations there are ultimately on the basis of its own internal standards.14 This might be a real problem in a world of radical legal pluralism; where the ultimate legal rules constituting different legal systems were grounded in radically different understandings of the prerequisites for legitimate authority and were radically self-contained, allowing no constructive engagement with the outside. But the problem is significantly attenuated if the internal standards with regard to each system would be compatible with the standards of other systems. For example, if the EU refuses to

12 In the domestic context legal pluralism often refers to the coexistence of state and non-state – often religious or tribal – sources of law, see Merry (1988). 13 For a study of these issues see Koskenniemi (2006). 14 Much of the literature takes for granted a Hartian jurisprudential framework, assuming that a legal system is ultimately constituted by a rule of recognition, see Hart (1960[2012]). Note how the criterion for a legal system is in that respect identical to a ‘self-contained legal regime’.

Global constitutionalism and the rule of law  303 enforce a UN Security Council Resolution on the grounds that it would violate human rights to do so, there would not be a problem if it turned out that the validity of the UN Security Council Resolution is itself dependent on being compatible with similar human rights standards as a matter of international law. Here a whole school of thought organized around the concept of ‘constitutional pluralism’ has emerged which insists that the plurality of legal systems we have in fact are systems where the internal standards of legality are in part substantively convergent and in part sensitive to the outside by integrating concerns for the coherence of the wider whole.15 That is, what underpins each legal order is a common constitutionalist understanding of its legitimate authority comprising basic principles that are recognized across legal systems and facilitate the resolution of conflict. This does not make the theoretical possibility of irresolvable legal conflict disappear, but it suggests that these conflicts will generally be rare because of mutually accommodating doctrines. Also, when conflicts do occur, they often take the form of contestation over principle in contexts where a decision-maker in another legal system has failed to take them into account. Such contestatory engagement more often than not leads to a more reasonable settlement, rather than a dramatic standoff. Even when there is a dramatic standoff, there are circumstances where such a standoff better serves rule of law principles properly understood then the smooth and effective functioning of oppressive laws. In that way legal pluralism constrained and guided by constitutionalist principles should be understood as a resource, not a threat to the rule of law.16 Is a conception of the rule of law informed by constitutionalist principles not ultimately too normatively demanding for the international legal order, given its deep diversity? This question can be understood in two different ways: first, it can be understood as a critical normative question concerning the hegemonic and homogenizing force of an international rule of law historically shaped by the West as it confronts legitimate diversity and difference across different traditions, cultures and identities. Second, it can be understood as a skeptical empirical question about its reality and political feasibility, given the power relations in the world as they are. Here diversity does not refer to the idea of legitimate difference, but the idea of powerful resistance by actors who happen to disagree, whether they are reasonable or not. Before I address either of these questions it is important to highlight a fact of central importance to lawyers. International law as it currently exists actually embraces constitutionalist ideals. All of the three core features central to an international rule of law imagined within a global constitutionalist framework described above are solidly grounded in existing positive law. In that sense their embrace by existing international law is, for better or for worse, a matter of fact. However deep diversity might be, it did not preclude whatever level of agreement was necessary to establish basic constitutionalist commitments. That raises the question of whether that law is not simply a hegemonic structure imposed by the Western powers on the rest of the world. Assuming that such a criticism is geared towards the relatively thick requirements couched in terms of rights, rather than the idea of collective capacity building or the abdication of violence and the insistence on the peaceful settlement of disputes, this is a debate that is too well rehearsed to require sustained engagement here. It must suffice to make three short points. First, in practice there is no continent in which popular movements have not embraced rights-based constitutionalism, often against the resistance of Classical contributions are: Maduro (2003); Walker (2002); Kumm (2005). For a debate among the protagonists see Avbelj and Komarek (2008). 16 For a similarly positive appraisal see Wiener (2008). 15

304  Handbook on global constitutionalism established local powers who seek to deny rights in the name of culture, tradition and local convention. Whether human rights are universally valid as moral principles or not, their appeal is certainly not limited to the western world (and appears to be on the wane in the Western world). The confident but misguided imperial European universalisms foisted on others at the end of the barrel of a gun in the past, in the form of Christianity and ‘civilization’, appear to have been replaced by a meek skepticism that remains unable to escape its Eurocentrism and Western fantasies of power: The ‘West’ is imagined as capable of imposing human rights on the rest of the world, while the active role that non-Western actors have played and continue to play in building and sustaining the international legal order is apparently beyond imagination.17 Second, even though some rights are categorical and do not allow for contextually variant application (for example, no torture or inhuman and degrading punishment), most rights are couched in an abstract language of principle and require some kind of proportionality test on application. Such a test is inherently sensitive to local circumstances and may legitimately lead to considerable variance in the understanding of rights across jurisdictions. Third, rights are applied and enforced internationally, to the extent they are enforced at all, only very deferentially, typically allowing for a margin of appreciation in favor of more local state actors. Given this structure, the concern is not so much that rights as universal standards are inappropriately imposed elsewhere. Much more serious is the concern that persistent and grave rights violations occur without international law being equipped to support local groups and individuals to effectively address and remedy those violations. What about the claim that, notwithstanding the fact that international law in the books appears to endorse constitutionalist ideals of the rule of law, in practice power relationships determine the conditions under which law is given its due and when it is ignored? The charge would be that much of what appears to be morally appealing in international treaties is simply moral posturing and effectively cheap talk that is ignored much of the time. Dictators oppress their subjects whether or not they have also signed and ratified international human rights treaties (see Hathaway 2002), powerful states use force as they deem appropriate without much concern for international law. And international institutions such as the UN Security Council are likely to act mostly in cases where it is possible to cobble together a dubious coalition of actors to do dubious things by dubious means, making it appear more desirable that they do nothing. Exactly those features of international law that constitutionalists tend to focus on are little better than forms of organized hypocrisy (Krasner 1999). There is some truth in these claims, but there may be less of it than those who levy these charges might believe.18 However, even to the extent they are true, the question is, what follows from that? What does not follow is that law is inherently unable to address these types of issues, that power is inherently anarchic, at least on the international level.19 More plausible than throwing up your arms citing ‘realist’ positions and more constructive than claims about hypocrisy relating to noncompliance are claims that there are structures within international law that effectively enable this kind of noncompliance. Such criticism does not posit law against power, but law against law: It is a critique of law in the name of an ideal of law that is itself grounded in principles recognized as law. In the following I briefly lay out two structural See for example Becker (2014). For a critique of the Hathaway article see Goodman and Jinks (2003). For a general account of how human rights treaties matter see Goodman and Jinks (2013). 19 For a modern statement and defense of such a ‘realist’ claim see Goldsmith and Posner (2005). 17 18

Global constitutionalism and the rule of law  305 features within international law that exemplify distinct forms of legal hypocrisy. These ought to be the focus of criticism from the perspective of an ideal of the rule of international law, that is, from a perspective that remains internal to the law. The first example is an example of legal hypocrisy in the form of ‘remedial slack’. The second is an example of ‘compartmentalization’. Each of the issues mentioned raises complicated questions of interpretation, policy or institutional design that cannot be engaged with here. The point is to sharpen the sense of the work that an ideal of critical legality connected to the rule of law in the constitutionalist tradition might do. The first issue exemplifying ‘remedial slack’ as a form of legally organized hypocrisy is the issue of compulsory jurisdiction. The issue was of considerable importance for legal thinkers such as Kelsen and Lauterpacht around the mid-twentieth century, but became utterly unfashionable to address in the past decades, mostly because it is wrongly believed to be linked to naive legalist ideas. When a powerful actor violates the rights of another actor in international law there is still no guarantee that a legal remedy will be available. The past 25 years or so have witnessed the development of what has been called an international judiciary (Alter 2014) and there certainly has been a remarkable growth in the number of courts and tribunals and their case load, but there are still many situations in which the party whose rights have been violated has no judicial remedy. When Russia annexed Crimea and fostered war in eastern Ukraine, for example, Ukraine did not have the possibility of getting relief in the form of a judgment by an impartial and independent tribunal certifying that its rights had been violated and that Russian claims to the contrary were spurious.20 International lawyers insist that a court can only have jurisdiction over a state with the consent of that state. However, constitutionalists should be skeptical of such a settlement. How can it be that notwithstanding a requirement that disputes be settled peacefully and the general principle of nemo iudex in causa sua, and notwithstanding the fact that with regard to domestic courts constitutionalists have generally won the battle against the tendency of powerful state actors to have their actions immunized from scrutiny by courts, in international law the deeply reactionary claim that sovereigns can only be subject to the jurisdiction of courts if they have consented to it is still virtually unchallenged? The answers that operate with arguments drawn from mid-twentieth-century debates might well deserve a reassessment. What is clear is that the absence of such a possibility reduces the cost of illegal practices of domination by powerful actors. Remedial slack undercuts the seriousness of the primary obligation imposed by international law. Practically, of greater significance is perhaps the second example. A great deal of misery and extreme poverty in the world is connected to corrupt, despotic and kleptocratic governments that ruin the life prospects of their citizens, who, by virtue of having been born in that place, happen to have drawn the short straw in the birthright lottery. A great deal of the legal efforts aimed at improving these kinds of situations focus either on improving human rights’ monitoring and naming and shaming, the establishment of human rights courts, or facilitating humanitarian intervention by delinking it from the requirement of Security Council authorization. However, when kleptocratic despots loot, ravage and pillage their country for their own purposes, they generally do so with the help of weapons bought from developed countries, 20 Instead Ukraine was forced to make a claim based on a Treaty under which Russia had agreed on the jurisdiction of the ICJ. See the pending case concerning Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation).

306  Handbook on global constitutionalism with expertise and license fees provided by helpful multinational companies selling the looted goods on international markets, all while those in power receive symbolic validation and diplomatic recognition and protection under international law. Without the ‘outside’, the project of oppression would not get started. In that sense, developed countries are invariably enabling and complicit in the misery that characterizes many despotically run or failing states, whose citizens are condemned to live in misery. International law’s permissive norms enable such complicity, without those complicit in these actions being liable under international law. There are a variety of legal reforms that would go some way towards alleviating the problem, all focused on effectively curtailing the resource and lending privilege of non-representative governments, while imposing duties of care on outsiders doing business with the government or otherwise providing money or buying goods to make sure that the goods they are buying are not blood diamonds or the money for the bonds they are buying does not simply go to an off-shore bank account or is used to pay off allies at home to support the oppressive enterprise. The details do not matter here.21 What matters is to understand the structure of the pathology. International law establishes binding human rights norms. There is much debate about how these norms might more effectively be enforced, but none of the traditional debates had, until relatively recently, focused on the international legal structure which is an enabler of these practices. The nexus between human rights law and trade law and the structure of norms governing the international capital markets was neglected. Here hypocrisy is enabled by compartmentalization: Human rights experts focusing on human rights, but not trade or capital markets, and vice versa. It is a feature of the constitutionalist perspective that it tends to be more holistically focused. It resists this compartmentalization and has the resources to uncover and critically analyze exactly such connections. These examples illustrate how situations in which we might be inclined to simply say that powerful actors violate the law are better described as situations of legal hypocrisy. The enabling international rules relating to the resource and lending privilege may provide incentives to bad actors to seize the levers of power, while the compartmentalization the legal profession engages in hides the complicity of others. Furthermore, remedial slack international law may ensure that violations of law are less costly then they might otherwise be. Rather than powerful actors violating the law, these are instances where law enables, covers up or ignores rights-violative actions. The rule of law as a critical ideal is not only useful to uncover the workings of legal hypocrisy; it generally provides lawyers with good reasons to engage law more critically, while having greater confidence in its power.

REFERENCES Alexy, R. (2010), The Argument from Injustice, Oxford: Oxford University Press. Alter, K. (2014), The New Terrain of International Law: Courts, Politics, Rights, Princeton, NJ: Princeton University Press. Alvarez, J. (2005), International Organizations as Law-Makers, Oxford: Oxford University Press. Avbelj, M. and J. Komarek (2008), ‘Four visions of constitutional pluralism – symposium transcript’, European Journal of Legal Studies, 2 (1), 323–67. Becker, A.L. (2014), Mestizo International Law: A Global Intellectual History 1842–1933, Cambridge: Cambridge University Press.

For a book-length analysis of these issues see Wenar (2015).

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Global constitutionalism and the rule of law  307 Bell, D.A. (2015), The China Model, Princeton, NJ: Princeton University Press. D’Aspremont, J. (2011), Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules, Oxford: Oxford University Press. Fuller, L.L. (1969), The Morality of Law, revd edn, New Haven, CT: Yale University Press. Goldsmith, J. and E. Posner (2005), The Limits of International Law, Oxford: Oxford University Press. Goodman, R. and D. Jinks (2003), ‘Measuring the effects of human rights treaties’, European Journal of International Law, 14 (1), 171–83. Goodman, R. and D. Jinks (2013), Socializing States: Promoting Human Rights through International Law, Oxford: Oxford University Press. Hart, H.L.A. (1960), The Concept of Law, reprinted 2012, Oxford: Oxford University Press. Hathaway, O. (2002), ‘Do human rights treaties make a difference?’, Yale Law Journal, 111 (8), 1935–2042. Holmes, S. (2012), ‘Constitutions and constitutionalism’, in A. Sajó and M. Rosenfeld (eds), Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 189–216. Kammerhofer, J. (2015), ‘International legal positivism’, in F. Hofmann and A. Orford (eds), Handbook of International Legal Theory, Oxford: Oxford University Press, pp. 407–26. Koskenniemi, M. (2006), ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, report of the Study Group of the International Law Commission, GA/CN.4/L.682, United Nations General Assembly, New York. Krasner, S. (1999), Sovereignty as Organized Hypocrisy, Princeton, NJ: Princeton University Press. Kumm, M. (2005), ‘The jurisprudence of constitutional conflict: Constitutional supremacy before and after the constitutional treaty’, European Law Journal, 11 (3), 262–307. Kumm, M. (2013), ‘The cosmopolitan turn in constitutionalism: An integrated conception of public law’, Indiana Journal of Global Legal Studies, 20 (2), 605–28. Loughlin, M. (2010), The Foundations of Public Law, Oxford: Oxford University Press. Maduro, M.P. (2003), ‘Contrapuntal law: Europe’s constitutional pluralism in action’, in N. Walker (ed.), Sovereignty in Transition, Oxford: Hart, pp. 501–37. Merry, S.E. (1988), ‘Legal pluralism’, Law and Society Review, 22 (5), 869–96. Palombella, G. (2010), ‘The rule of law as an institutional ideal’, in G. Palombella and L. Morlino (eds), Rule of Law and Democracy: Internal and External Issues, Leiden: Palombella, pp. 3–37. Petersmann, U. (2017), Multilevel Constitutionalism for Multilevel Governance of Public Goods, Oxford: Hart. Plato (1969), The Republic, in L.R. Loomis (ed.), Five Great Dialogues, New York: Gramercy, p. 362. Radbruch, G. (1932), Rechtsphilosophie (Legal Philosophy), Leipzig. Raz, J. (1979), The Authority of Law, New York: Oxford University Press. Romano, C., K. Alter and Y. Shany (2014), ‘Mapping international adjudicative bodies, the issues and players’, in C. Romano, K. Alter and Y. Shany (eds), The Oxford Handbook of International Adjudication, Oxford: Oxford University Press, pp. 3–26. Schauer, F. (2015), The Force of Law, Cambridge, MA: Harvard University Press. Waldron, J. (1999), Law and Disagreement, Oxford, Oxford University Press. Waldron, J. (2008), ‘The concept and the rule of law’, Georgia Law Review, 43 (1), 1–61. Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59. Wenar, L. (2015), Blood Oil, Oxford: Oxford University Press. Weinstock, D. (2017), ‘Ripstein on Kant on revolution’, in S. Kisilevsky and M.J. Stzone (eds), Freedom and Force: Essays on Kant’s Legal Philosophy, Oxford: Hart, pp. 129–40. Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters, Cambridge: Cambridge University Press. Wolff, R.P. (1970), In Defense of Anarchism, New York: Harper & Row.

21. Balance of powers Eoin Carolan

INTRODUCTION A long-standing feature of constitutional theory at the level of the nation-state, the notion of a balance of powers has also been evoked in the emerging field of global constitutionalism. As the next section of the chapter suggests, there is a clear strategic logic to this approach. The role which the balance of powers plays in domestic constitutional doctrine has obvious appeal for advocates of a constitutionalising analysis of the supranational sphere. The idea that structures of governance can be described in terms of an institutional balance tends to confer a degree of descriptive coherence and normative legitimacy upon the system being so described. However, the concept is not without its challenges. The third section considers the implications of domestic criticisms for the concept’s potential application to the global constitutionalist project. This section concludes that the ambiguity of the concept may provide a degree of flexibility that has some value in a more fragmented international environment. As the fourth section points out, however, a review of the European Union’s ‘institutional balance’ indicates that this flexibility may, under certain conditions, undermine the normative potential of the concept. As the chapter concludes, this highlights the necessity for an effective balance of powers analysis to take account of the processes by which inter-institutional engagement occurs.

THE APPEAL OF A ‘BALANCE OF POWERS’ In domestic constitutionalism, the balance of powers typically serves two functions. First, it provides a coherent descriptive account of a system’s institutional structures. This facilitates mutual understanding between domestic actors of their respective positions, thereby also promoting clarity and consistency in the system’s everyday operations. Secondly, the idea of an institutional balance has an important normative function. This derives, at least in part, from the intuitively positive connotations of the use of the term ‘balance’ rather than (for example) ‘separation’. The choice to describe a system as balanced can generally be regarded, therefore, as a deliberate attempt to associate the system with certain normative goods: evenness, coherence, stability or, perhaps most importantly, the absence of an over-mighty and potentially tyrannous actor. This means that, while a balance of powers analysis – strictly speaking – could involve no more than a descriptive account of the inter-institutional power distribution that the relevant structures have created, it more commonly has at least a minimally normative dimension. Whether conceived as a system of hierarchical legal norms or multi-polar pluralism, a constitutionalising analysis of the supranational sphere cannot avoid questions about the dynamics and distribution of inter-institutional power. At a basic level, this is necessitated by the empirical realities of a system of supranational authority without a global government. 308

Balance of powers  309 Where ‘the postnational space is composed of overlapping legal arrangements that exercise authority in complex ways’ (Kuyper 2014, p. 170), any account of that space must engage with this phenomenon of relative and overlapping authority. In this context, therefore, the balance of powers holds out the prospect that the fragmented nature of the international legal order may be harnessed in positive ways that promote these (or other values) so that ‘global checks and balances must be more subtle and must encompass an institutional equilibrium’ (Peters 2005, p. 63). A balance of powers suggests that there is an underlying logic or harmony to this densely complicated institutional architecture: a message that has obvious attractions for a global constitutionalist project that ‘carries the promise that there is some system in all the madness, some way in which the whole system hangs together and is not merely the aggregate of isolated and often contradictory movements’ (Klabbers 2004, p. 49). This understanding of the balance of power as a strategy associated with the pursuit of certain normative goals can be found, for example, in the most influential early work on forms of international legalism. The creation or restoration of a balance or equilibrium between European peoples and states was a key objective of post-Westphalian writings on the pursuit of peace. While Abbé de St-Pierre or Rousseau may have criticised classical formulations of a European balance of powers, their theories nonetheless retained the notion of equilibrium as a core normative concern. Perhaps most notably, a balance of powers at the international level was a necessary aspect of Kant’s ideal model of an international order based on mutually recognised norms of engagement between autonomous but inter-dependent states. This internationalist emphasis on balance as a means of avoiding the dangers of a solitary coercive authority had echoes of the classical models of mixed and balanced government at the level of the national state. The Aristotelian and Polybian techniques of balance by categorical separation were highly influential for medieval theorists of stable government such as Guicciardini, Giannotti or Machiavelli (Pocock 2003). In turn, these medieval theories seem to have influenced the eighteenth-century interest in the possibility of using a diversity of interests as a safeguard against excessive accumulations of power. The modern incarnation of this approach envisages ‘a balance of powers at the global level [as] provid[ing] the space for a state-based system to function in such a way that any single state or institution cannot dominate the others’ (Lang Jr. 2013, p. 106). These classical and medieval republican theories also emphasise the positive constitutional implications of establishing an institutional balance between distinct and differing interests; namely, that it would ensure a degree of universal value in the conduct of the state. Balance therefore was an attempt not simply to counter tyrannous or arbitrary rule but also to meet ‘[t]he formal dilemma of the ... republic [as] an attempt to realize a universality of values within a particular ... political structure’ (Pocock 2003, p. 84). Here again, there are parallels with later work on an international balance of powers. A similar approach can be seen, for example, in Kant’s focus on the ‘regulative’ effects of securing balanced rather than solitary or unseparated power: by denying actors the possibility of unitary action, the resulting multiplicity of authority makes necessary a degree of mutual engagement in which the parties may make use of techniques of practical reasoning or moral persuasion. This introduces a deliberative element to the practice of international politics, a feature which has value and significance for not only republican (Pettitt 2014) but also other theories of democratic government (Goodin 2008). Again, this is a theme that has been taken up in more recent works on balance in the global constitutional context where it has been

310  Handbook on global constitutionalism argued ‘to constitute and reinforce the pluralism of law, politics and morality [in a way that] not only protects individuals but also better reflects the realities of the current global system’ (Lang Jr. 2013, p. 106).

THE CHALLENGES OF A BALANCE OF POWERS This possible connection with older ideas of mixed and balanced government draws attention, however, to the ambiguity of the equilibrium being pursued. Magill (2000) has highlighted how institutional balance has been a critical component of very different conceptions of both the nature of the state and of how it ought to be organised. While the achievement of an institutional balance is the common goal of theories of mixed and balanced government and of the separation of powers, there can be significant and important differences in how this balance is conceived and created. Most obviously, the concept of balance has little if anything to say about how it should be achieved. Is it a matter of separation or of mixing institutional competences? And along what lines should the chosen strategy of separation or blending be organised? At the very least, the indeterminacy of these concepts underlines the necessity for further choices to be made in developing a workable or effective balance of powers. This is considered further below. In addition, it also suggests that the choice of terminology between separation and balancing may be of primarily rhetorical significance given the lack of strong differentiating factors between these two approaches. This has some relevance to the criticism that has sometimes been expressed in the supranational context about the plausibility of this sort of constitutional analysis in the absence of domestic typologies of separate powers (Conway 2011). The indeterminacy of the separation of powers doctrine means that these apparently principled objections are largely meaningless. Institutional balance serves a similar purpose to notions of the separation of powers: of organising a distribution of governmental power that pursues particular normative goals. More fundamentally, almost all serious accounts of a separation of powers approach regard it as a matter of separation and of balance – a point well illustrated by how commonly such accounts also make use of the language of checks and balances. There are, of course, important differences between specific models of institutional organisation. The point is, however, that these differences cannot be accounted for by the language of separation or balance. The two approaches are – at an abstract level – insufficiently distinct to treat the choice of label alone as constitutionally conclusive. That is not to say that there may not be reasons why the language of balance might be preferred in some of the literature on global constitutionalism. In particular, it seems plausible to suggest that the choice of terminology may respond to certain specific features of the global constitutional context and may have important signalling effects. First, the language of balancing may have descriptive advantages in terms of its appropriateness and relative neutrality. The most familiar versions of the separation of powers at national constitutional level are often linked to the (simplistic) image of three separate institutions exercising legislative, executive and judicial powers. The conspicuous absence of any analogous arrangement of institutions or powers at the supranational level complicates the framing of global constitutional questions in traditional separation of powers terms. By comparison, ideas of institutional balance bring less baggage.

Balance of powers  311 Secondly, the notion of balance may be seen as more accommodative of the fragmented character of legal structures with a supranational or international dimension. While it is somewhat misleading even at a domestic level, the language of separation is capable of being construed as supportive of formal divisions of competence with strong institutional boundaries. This connects to characteristics that Rosenfeld has argued to be distinctive of the domestic constitutional arrangements as ‘always present regardless of the particular constitutional identity involved’ (Rosenfeld 2014, p. 190). At national level, in his view, ‘there is a cohesive, unified, hierarchically ordered constitutional/legal system that maximizes formal convergence among all diverse elements and interests’ whereas ‘transnational legal regimes seemingly lack the means to secure the hierarchy and unity of legal norms that nation-state constitutions have managed to institutionalize’ (Rosenfeld 2014, p. 190). The result is that ‘against the unity and hierarchy of the nation-state, the transnational legal universe is one characterized above all by layering and segmenting’ (Rosenfeld 2014, p. 192). From this point of view, an approach that emphasises balancing rather formal separation can be justified as a pragmatic acknowledgement of the heterarchical nature of the institutional arrangements at issue. Thirdly, and perhaps most importantly, it arguably also points to differences of emphasis and objective in the broader project of global constitutionalism. Whereas domestic theories of separation are often concerned with guarding against the arbitrary rule of a powerful central sovereign, the comparative political weakness of international organisations provides its own degree of insurance against an over-mighty institution. The challenge for global constitutionalism is frequently not to fragment authority but to coordinate the fragmented and contestatory impulses associated with their multi-level and multi-actor systems of decision-making. The concept of a balance of power may be more amenable to a process of managing these inputs. This brings the discussion to the critical question for any serious efforts to develop a balance of powers model: how should it actually be organised? Here, the issue of indeterminacy identified by Magill (2000) returns but in a potentially much more problematic way. The fact that an approach based on ‘institutional balance’ may be susceptible to multiple interpretations is not, in itself, a barrier to a workable theory. Experience at the domestic level has suggested that ‘important intellectual traditions comport with the basic view that multiple configurations of our separations of powers are possible as well as normatively acceptable’ (Peabody and Nugent 2003, p. 34). Different models of separation may suit different political and institutional realities and may pursue different normative goals. This has meant that the common label of ‘the separation of powers’ has actually been justified and organised by reference to a number of distinct, if sometimes overlapping, normative values. Classically, the model is associated with the protection of political liberty against the potential tyranny of absolute power (Madison et al. 1788 [1987], esp. nos 47 and 51; Vile 1967, p. 14). However, the model’s normative value has been expressed in various other forms, from the familiar establishment of checks and balances (Barendt 1995),1 as a method of promoting public goods in government (Barber 2013), as an accountability mechanism (Persson et al. 1997), as a safeguard against arbitrary decision-making (Brown 1991; Carolan 2009) or, more generally, as a prerequisite for the more compendious concept of the rule of law (Gwyn 1965; Verkuil 1989; Waldron 2013). Reflecting certain aspects of their common intellectual heritage, there may be similar scope for conceptual flexibility with approaches to constitutionalisation that prioritise the rhetoric

1



Myers v US (1926) 272 U.S. 52, 293.

312  Handbook on global constitutionalism of balance. This means, however, that a workable theory of institutional balance faces similar challenges. In particular, it seems essential for an operational account of institutional balance to proceed from a more precise articulation of its animating values and goals. This follows from the ambitious nature of any attempt to establish an overarching model of inter-institutional engagement. This goes further, for example, than the Koskenniemi Report’s effort to develop ‘collision-rules’ for international legal actors (Koskenniemi 2006). That report focused on substantive principles rather than overlapping institutional powers or competences. This meant, however, that it was based on an agnostic neutrality between institutional values and substantive institutional norms. By contrast, a ‘balance of powers’ analysis not only requires a consideration of the relative positions and powers of specific institutional actors but should also necessitate the taking of deliberate choices about the normative goals which the system aims to secure. From this normative perspective, the danger is that conceptual flexibility can produce an ambiguity in practice that borders on the meaningless. In particular, a failure to strictly specify what is meant by ‘balance’ may – as has been the experience on occasions with the separation of powers – mean that the theory’s influence is primarily as a rhetorical defence of actions undertaken on the basis of other considerations.

DESIGNING AN INTERNATIONAL BALANCE OF POWERS? THE CASE OF THE EUROPEAN UNION In this regard, the European Union (EU) offers an instructive example of the possibilities and pitfalls of a balance of powers approach to global constitutional forms. The complex multi-actor and multi-level character of the European Union’s political and institutional dynamics means that its allocation of institutional powers has usually been conceptualised as a model of ‘institutional balance’ rather than tripartite separation (de Búrca 1996). Jacqué’s explanation of the Court of Justice of the EU’s decision in Meroni makes clear the practical and strategic benefits of using a flexible notion of balance as the EU’s core yardstick of institutional legitimation: For the Court, the principle [of institutional balance] is a substitute for the principle of the separation of powers ... In the absence of a separation of powers, the principle of institutional balance made it possible to guarantee to undertakings that a modification of the institutional balance would not call into question the decision-making process envisaged by the treaties and the accompanying guarantees provided by the treaties. (Jacqué 2004, p. 384)

This view of institutional balance approximates to a particular strand of separation of powers thought which emphasises the broader democratic benefits of a system of institutional checks and balances. On this analysis, the establishment of a system in which independent institutions fulfil a mutual checking function promotes more democratically robust decision-making. The existence and exercise of these independent institutional checks leads not only to more balanced government but also to a way of governing in which the exercise of institutional power is more visible, more subject to account, and more likely to promote the broader public interest. This is a form of argument which goes beyond the negative dimension to separating power to focus on the potential for institutional separation to make a positive contribution to the

Balance of powers  313 quality of government action. If the purpose of the separation of powers is to protect liberty, simply providing for multiple forms of separation is arguably sufficient. The essence of the negative separation strategy is that a division of power complicates its exercise such that government itself becomes more difficult. Given that the goal of institutional scholars in the EU context (as with many other global organisations) has generally been to alleviate some of the difficulties of fragmentation and coordination that currently hinder government action at the level of the EU, their focus on the positive potential of a system of institutional overlaps is unsurprising. Thus, if the purpose of developing a separation of powers model is to enhance the legitimacy of the EU, a system of negative checks is insufficient. Those checks must be designed in a way that ensures that their exercise tends to produce these positive effects. What effects might advocates of an institutional balance (or positive separation of powers) for the EU have in mind? Before looking at specific EU examples, it may be helpful to think in the abstract about the various ways in which requiring institutional separation may bring about the kind of dialogic inter-institutional processes that promote certain normatively significant values. Separation engenders inter-branch communication, which provides a degree of transparency and publicity.2 The independence of the branches increases the informational (and thus political) costs of pursuing policy objectives, which tends to encourage generality and discourage attainder. If an institution wishes to target a particular group but is dependent on the assistance of other institutions to achieve this, it can only be certain of success if it makes its intentions clear. Separation does not preclude this, but it does limit the potential for surreptitious tyrannies. The burden of persuasion identified in the previous section also means that an institution may, in practice, be required to explain its favoured course of action. The provision of this type of institutional justification, in turn, means that the actions of that institution are more susceptible to challenge and/or review by other agencies of government. This also has the potential to enhance the degree of expertise in government by allowing other agencies with particular experience or specialisations to identify and correct errors in the reasoning provided. Taken together, these process values promote institutional accountability, which in turn fosters the substantive principle of non-arbitrariness which is at the core of legitimate governance (for this argument in more detail, see Carolan 2009, pp. 82–105). That a separation between institutions can have such significant effects on the legitimacy of government is underlined by the fact that it was, after all, this concern to prevent arbitrary government which animated much of the original scholarship on the separation of powers (Brown 1998; Bressmann 2003). A close analysis of the positive inter-institutional dynamics sketched out in the previous paragraphs makes clear that institutional separation, of itself, is insufficient to support the values identified therein. Separation does not automatically inculcate ­positive ­institutional or systemic attributes. Nor, therefore, does a division of institutional authorities necessarily bring about a balance of powers. What this account suggests is that an effective system of institutional balance must take account of the nature, context and content of inter-institutional relationships. The fact that the EU’s institutional arrangements do not resemble those typically associated with domestic governments need not, therefore, preclude development at European level of a legitimising model of separated powers. Rosenfeld’s positive assessment of how ‘the EU Council, Commission, Parliament, and the CJEU added together allow for a separation



2

Whether within government or to the public at large.

314  Handbook on global constitutionalism of powers comparable to that of well-functioning nation-state constitutional democracy’ (Rosenfeld 2014, p. 194) exemplifies this approach. Equally, however, the simple establishment of some form of institutional separation does not a system of checks and balances make. While the division between various EU-level institutions may, in principle, be capable of so functioning, a more detailed examination of how the EU’s institutional arrangements operate in practice calls claims of a balance of powers into question. In particular, there appears to be a significant gap between the idea of an EU of balanced powers on the one hand, and the real-world power dynamics of EU decision-making, on the other. This has been most starkly illustrated perhaps by the ad hoc nature of Europe’s response to its post-2008 economic difficulties. If the point of a constitutional order (whether domestically or globally) is to establish a system of clear and foreseeable pre-commitments as a safeguard against the future (arbitrary) exercise of discretionary authority by the powerful, there are legitimate questions to be raised about the rule of law within the EU. The response to the economic and banking crisis has been driven by those bodies presently in a position of political or economic power with little evidence of decisions being shaped by institutional, procedural or formal constraints. Dawson has argued that the response can be explained largely from the personal viewpoint of the German Chancellor because of her ‘willingness ... to frequently agree measures during the crisis through inter-governmental fiat, in concert with selected eurozone states’ (Dawson 2015, p. 981). The references here to fiat and to ‘selected states’ speak to the ad hoc, agenda-driven and largely rule-free nature of this decision-making (see Fabbrini 2013). Where formal limitations existed in the treaties, they have been circumvented by the device of separate international agreements such as the Fiscal Compact Treaty. Where forms of governance have been established, they – seemingly deliberately – ‘carry few mechanisms to ensure political control and legal scrutiny’ (Dawson 2015, p. 977). In this environment, it is unsurprising that the more ambiguous idea of institutional balance has exerted even less influence. Nor can this experience be explained away as an extraordinary (and therefore unrepresentative) response to an emergency situation. Jacqué’s earlier work on the evolution of institutional balance within the EU’s legal order argued that this process had ‘taken place without prior reflection, simply pulled along by the strongest current’ (Jacqué 2004, p. 387). This is a practical illustration of the risk that a constitutional ‘theory’ of institutional balance or balance of powers may prove, in large part, an empty one. Of course, this indeterminacy may have a certain practical appeal in an evolving institutional framework. Craig, for example, has suggested that the studied imprecision of this institutional balance allows it to operate as ‘a device which enables the Community to move forward in an incremental manner, without ever really resolving the issues of democracy and legitimacy which lie at the heart of the debate about its future’ (Craig 1997, p. 113; see further, Craig 1990). There may be pragmatic advantages to an account of institutional relations which can easily be adjusted to take account of political bargains. As the EU’s response to the crisis demonstrates, however, this is likely to lead to the ex post facto formalisation of prevailing power imbalances rather than the normatively-appropriate ‘balance’ to which the rhetoric aspires. This has been especially evident in how the EU’s approach to crisis issues has increasingly resulted in the formal conferring of additional competences on EU-level institutions and other actors composed of members of the national executive power (such as the European Council, the Council, the Euro summits and the Eurogroup). ‘The response to the crisis has

Balance of powers  315 . . . undermined the concept of institutional balance by way of a power shift towards executive dominance’ (Dawson and de Witte 2015, p. 373). Crucially, however, this is true even in more ‘normal’ times. A striking and unfortunate feature of how the ‘balance’ between EU institutions has operated is the extent to which the dynamics of these relationships have been driven by internal institutional concerns. This is a particular problem given that the interests of these ‘separate’ authorities may – as bodies established by a supranational entity and staffed by a bureaucratic elite – coincide in ways that are not necessarily consistent with important constitutional goods. This has led to the phenomenon of institutions developing internal policies or informal working practices that exclude other institutions or the broader public (Curtin 2014). The conclusion by EU institutions of inter-institutional agreements is an early (and frequent) example of this tendency (Riekmann 2007). A more recent and notable example of this is the use of closed-door trilogues as part of the EU’s legislative process (de Ruiter and Neuhold 2012; Reh et al. 2013). The trilogue process involves engagement between representatives of the Council and European Parliament under the supervision of the Commission to produce agreed rule-making provisions. For the institutions, this process has obvious advantages. It may be efficient, it may allow for robust engagement and it tends to limit the scope for the adoption of a particular institutional position to incur reputational costs. These advantages clearly come, however, (in some instances deliberately) at the expense of democratically important principles of publicity, transparency and accountability. Most problematically, these principles are the very procedural values which a positive account of institutional balance should promote. This highlights the limitations of formal or even rationalist accounts of a post-national balance of powers. The fragmented and multi-layered nature of supranational structures may provide a practical check on the abuse of coercive powers but the fact that dominion may be difficult does not equate to an institutional balance. Nor, EU experience suggests, does the Madisonian assumption that ambition checks ambition necessarily secure the system against a detrimental commonality of interests across institutional boundaries. These strategies of separating power or encouraging inter-institutional rivalries may be a necessary element of efforts to legitimise and organise the complex and multi-layered architecture of global constitutionalism but they do not, of themselves, seem sufficient.

CONCLUSION This review of the EU’s experience suggests that, if the notion of a balance of powers is to be more than mere rhetoric so that it has genuine rule-of-law effects, it seems essential for there to be a clear and consistent focus on the processes by which this balance may be created. It also seems preferable for any notion of institutional balance to be understood not as a settled statement of institutional fact but as an ongoing effort to manage the complex power dynamics of a multi-actor system. This suggests that the focus of a global constitutionalist analysis should be on the mechanisms by which inter-actor engagement occurs. From a practical perspective, the fragmented nature of the international architecture means that a focus on process may be more feasible. What this analysis suggests, however, is that it may also be a more conceptually and normatively appropriate approach. A model based on a balance of formal powers may be unworkable because of an absence of clear institutional boundaries at the international

316  Handbook on global constitutionalism level – but that absence may itself be desirable as a means of promoting the normative goods associated with inter-institutional contestation. Global constitutionalism may strive to identify a system in the madness but that does not automatically equate to a system based on a unity or hierarchy of top-down legal norms. An effective institutional balance need not be harmonious. If the pursuit of a constitutionalising balance means that the contestation that inevitably occurs at international level may support other legitimising process values, then the idea has some potential to make a contribution to a normative case for a global constitutionalism.

REFERENCES Barber, N. (2013), ‘Self-defence for institutions’, Cambridge Law Journal, 72 (3), 558–77. Barendt, E. (1995), ‘Separation of powers and constitutional government’, Public Law, Winter, 599–619. Bressmann, L.S. (2003), ‘Beyond accountability: arbitrariness and legitimacy in the administrative state’, New York University Law Review, 78 (2), 461–556. Brown, R.L. (1991), ‘Separated powers and ordered liberty’, University of Pennsylvania Law Review, 139 (6), 1513–66. Brown, R.L. (1998), ‘Accountability, liberty and the constitution’, Columbia Law Review, 98 (3), 531–79. Carolan, E. (2009), The New Separation of Powers, Oxford: Oxford University Press. Conway, G. (2011), ‘Recovering a separation of powers in the European Union’, European Law Journal, 17 (3), 304–22. Craig, P.P. (1990), Public Law and Democracy in the United Kingdom and the United States of America, Oxford: Oxford University Press. Craig, P.P (1997), ‘Democracy and rulemaking within the EC: an empirical and normative assessment’, European Law Journal, 3 (2), 105–30. Curtin, D. (2014), ‘Overseeing secrets in the EU: a democratic perspective’, Journal of Common Market Studies, 52 (3), 684–700. Dawson, M. (2015), ‘The legal and political accountability structure of post-crisis EU economic governance’, Journal of Common Market Studies, 53 (5), 976–93. Dawson, M. and F. de Witte (2015), ‘Self-determination in the constitutional future of the EU’, European Law Journal, 21 (3), 371–83. De Búrca, G. (1996), ‘The quest for legitimacy in the European Union’, Modern Law Review, 59 (3), 349–76. De Ruiter, R. and C. Neuhold (2012), ‘Why is fast track the way to go? Justifications for early agreement in the co-decision procedure and their effects’, European Law Journal, 18 (4), 536–54. Fabbrini, S. (2013), ‘Inter-governmentalism and its limits: assessing the EU’s answer to the euro crisis’, Comparative Political Studies, 46 (9), 1003–29. Goodin, R.E. (2008), Innovating Democracy, Oxford: Oxford University Press. Gwyn, W.B. (1965), The Meaning of the Separation of Powers, New Orleans, LA: Tulane University Press. Jacqué, J.-P. (2004), ‘The principle of institutional balance’, Common Market Law Review, 41 (2), 383–91. Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58. Koskenniemi, M. (2006), ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, report of the Study Group of the International Law Commission, A/CN.4/L.682, April, United Nations General Assembly, Geneva. Kuyper, J. (2014), ‘The democratic potential of systemic pluralism’, Global Constitutionalism, 3 (2), 170–99. Lang Jr., A.F. (2013), ‘Global constitutionalism as middle ground ethics’, in C. Navari (ed.), Ethical Reasoning in International Affairs: Arguments from the Middle Ground, Basingstoke: Palgrave Macmillan, pp. 106–26. Madison, J., A. Hamilton and J. Jay (1787–88), The Federalist Papers, reprinted 1987, London: Penguin.

Balance of powers  317 Magill, E. (2000), ‘The real separation in separation of powers law’, Virginia Law Review, 86 (6), 1127–98. Peabody, B.G. and J.D. Nugent (2003), ‘Towards a unifying theory of the separation of powers’, American University Law Review, 53 (1), 1–64. Persson, T., G. Roland and G. Tabellini (1997), ‘Separation of powers and political accountability’, Quarterly Journal of Economics, 112 (4), 1163–202. Peters, A. (2005), ‘Global constitutionalism revisited’, International Legal Theory, 11 (Fall), 39–67. Pettitt, P. (2014), On the People’s Terms, Cambridge: Cambridge University Press. Pocock, J.G.A. (2003), The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, 2nd edn, Princeton, NJ: Princeton University Press. Reh, C., A. Héritier, E. Bressanelli and C. Koop (2013), ‘The informal politics of legislation: explaining secluded decision making in the European Union’, Comparative Political Studies, 46 (9), 1112–42. Riekmann, S.P. (2007), ‘The cocoon of power: democratic implications of inter-institutional agreements’, European Law Journal, 13 (1), 4–19. Rosenfeld, M. (2014), ‘Is global constitutionalism meaningful or desirable?’, European Journal of International Law, 25 (1), 177–99. Verkuil, P.R (1989), ‘Separation of powers, the rule of law and the idea of independence’, William & Mary Law Review, 30 (2), 301–41. Vile, M.J.C. (1967), Constitutionalism and the Separation of Powers, Oxford: Clarendon Press. Waldron, J. (2013), ‘Separation of powers in thought and practice’, Boston College Law Review, 54 (2), 433–68.

22. Constituent power in global constitutionalism Peter Niesen

Modern constitutionalism is based on the notion of constituent power. Constituent power signals that constitutional orders are made, not found, and that their authorship of last resort lies with the people. The notion connects the idea that all government needs to be subjected to formal legal rules with a commitment to popular sovereignty, such that without eventual recourse to an authorising people, or against its authoritative expression, claims to constitutional validity will be fraudulent or void. But despite its central place in the modern understanding of constitutional government, constituent power has not played much of a role within global constitutionalism, i.e. the study of constitutionalisation in the international realm. On the contrary, as Loughlin has criticised (2010, pp. 67–9), leading conceptions have been developed in complete disregard to the question of constituent authorship. There are a number of reasons that could be cited for the eclipse. Some authors have claimed that it is incoherent to apply the notion beyond homogeneous nation states (Böckenförde 1991: p. 94), while others have warned that it necessarily transports an allegiance to mythical founding moments. They have seen the notion of constituent power as superfluous for constitutional government, or even to contain ‘the seeds of its own destruction’ (Dyzenhaus 2007, p. 129). A widespread suspicion is that in matters of global governance, in the absence of a pre-existing people, adequate holders of constituent power may be lacking (Krisch 2016; Scheuerman 2019; Nootens 2022). It is not immediately obvious which agents could take on the role of bearers of constituent power in post-national orders, and it may be risky to stretch the notion too far. At the same time, an outright rejection of constituent power, the central legitimating category of the democratic revolutions, would leave constitutionalists in a dilemma. After all, according to what standards will the new and ‘unbound’ processes of constitutionalisation (Wiener 2014, p. 18) count as legitimate? While Legal Theory may justifiedly restrict its reconstructions to the internal points of view of judges and legal procedures, International Political Theory, in reflecting the overall legitimacy of border-crossing constitutional orders, needs to reflect the perspectives of those subject to such orders (Niesen et al 2015; Patberg 2020). Indeed, democratic constitutionalists have argued that without recourse to constituent power, there can be no constitutionalism proper. In the absence of a plausible narrative of popular authorship, post-state developments of legal integration would either fail to produce a ‘constitution’ in the full sense of the term, or at any rate none that could be considered fully legitimate from the point of view of democratic theory (Möllers 2011; Maus 2015). In this chapter, I suggest that reverting to a notion of constituent power in global constitutionalism is necessary, plausible and useful. Relying on the assumption that the constituent power of the people is a key legitimating feature of state constitutions, I argue in two steps that global constitutionalism needs to attend to the question of constituent power as well. I first show that international treaties can affect domestic constitutions, unauthorised by constituent power. I then argue that a similar problem of ‘constituent usurpation’ arises for supra-state constitutions. In attempting to remedy this defect, I argue that it is plausible to extend the concept of constituent power to normative orders beyond the state. I focus on the presump318

Constituent power in global constitutionalism  319 tively most promising case, the European Union (EU), and the various candidates that have been proposed as its pouvoirs constituants (constituent powers). However, I do not advocate a one-conception-fits-all view and therefore add some brief reflections on other processes of supra-state constitutionalisation. I conclude that in most, though not all cases, ascriptions of constituent power will be relevant in a transformational, not a foundational perspective. The usefulness of the concept of constituent power I locate in three dimensions throughout, in its having an explanatory, a critical-restrictive, and an empowering function in processes of global constitutionalisation.1

CONSTITUENT POWER – THE TRADITIONAL VIEW Although the technical language of the pouvoir constituant was only introduced into constitutionalist language in Emmanuel Sieyes’ What is the Third Estate?, its key features are fully developed already in John Locke’s political theory. In this section, I first want to present its general outline, before moving on to the complications it entails for constitutionalisation beyond the state. Building on earlier influences,2 Locke distinguishes between ‘constituting’ and ‘constituted’ political bodies (1689[1967], II §§ 157, 212). The authority to constitute and re-constitute institutions of government, first and foremost to allocate legislative authority, lies with a people united in a horizontal compact. In investing the legislator with supreme constituted power, the constituting people binds its creation to operating within well-defined limits. Locke insists that the people have relinquished the power ‘only to make laws, and not to make legislators’ (1689[1967], II § 141). This restriction holds for the subordinate executive and ‘federative’ (foreign policy) powers as well: No constituted power can change the conditions under which they are authorised to operate, and none can convey their authorisation to another. Where the legislative power allows this to happen, the people may revert to their constituent role (Locke 1689[1967], II § 212). In such cases, legislative power falls back to the people, who are then free to ‘constitute a new form of government’ (Locke 1689[1967], II § 132). In the French Revolution, Emmanuel Sieyes only had to systematise the central features of Locke’s conception in contrasting a single pouvoir constituant with the various pouvoirs constitués. He went beyond Locke in asserting that, under all circumstances, the pouvoir constituant remains unbound by an existing constitution and is free to give itself a new one whenever it so pleases (Sieyes 1789[2003], p. 138; Rubinelli 2020). In Sieyes, the constituent power of the people does not have to be triggered into existence through a transgression on the part of the constituted powers. This move separates the mature doctrine of constituent power from earlier conceptions of justified resistance against tyrannical rule, including Locke’s.3 Whereas Locke did not say much about the activity of exercising constituent power, Sieyes emphasised For the purposes of this chapter, I do not invoke a comprehensive notion of ‘constitutionalisation’. As will become clear, I conceive of the allocation and regulation of public decision-making authority as its central feature. In this I follow Markus Patberg (2020), whose work has been an inspiration throughout. 2 One important predecessor is Lawson (1992), see Franklin (1978) and Niesen (2012). The systematic history of the idea of constituent power, avant and après la lettre, is developed in Kalyvas (2013), Arato (2017, 45–106), Colón-Ríos (2020, 29–76). 3 We owe to Ingeborg Maus the sharp confrontation of constituent power and resistance-based conceptions of democratic entitlements, see Maus (1992, pp. 43–148) and below. For the opposite view that 1

320  Handbook on global constitutionalism two aspects. He pointed out that one can never fully specify in advance which form(s) the activity of constitution-making is to take. He also thought that there is no principled reason not to delegate constituent power to separate institutions, yet insisted, with Locke, that it could never be delegated to other constituted powers (Sieyes 1789[2003], p. 139). In contrast to Locke’s voluntaristic understanding of how a constituent people comes about, Sieyes thought it could only arise from a pre-existing nation, which in turn was founded in natural law (Sieyes 1789[2003], p. 136f.). Yet for both, the question with whom constituent power lies only afforded a single, tautological answer (‘the people’), and the composition of the people was fixed, prior to the activity of constitution-making. Both expected the constituent power to take the initiative in processes of constitution-making and exert causal force (Locke 1689[1967], II § 96; Sieyes 1789[2003], p. 134). To sum up, despite their differences, the joint legacy of the Locke-Sieyes tradition is the twofold role it ascribes to the category of constituent power. From the outset, it is introduced to capture two ideas simultaneously: the idea of a claim to continuous institution-making and institutional change on the part of the people, as well as the idea of a permanent block to the threat of constituent usurpation, i.e. the absorption of competence-changing authority by constituted powers. We are now in a position to see how a problem of legitimacy can arise, based on the distinction between constitutive and constituted powers, from developments in international law, and thereby prepare the challenge to global constitutionalism. For matters of foreign policy, Locke proposes to institute a third constitutional branch, besides the legislative and the executive. The ‘federative’ power is to encompass the authority to declare war, negotiate peace, and enter into treaties and alliances with other states. Just like executive power, federative power is accountable to the legislative as the supreme constituted power (Locke 1689[1967], II § 153; Poole 2021), not to the constituent people. Yet some federative treaties can circumscribe the legislator’s competences and thereby modify the provisions set out by constituent power. As an example, consider a free trade treaty that signs away the right to subsidise domestic products through public funds.4 In establishing such a treaty, the federative power effects a change to the existing constitution (given that in the default case, the use of public funds was unregulated) in restricting the scope of legislative activity, something the legislative power itself could not authoritatively abdicate, even if it wanted to, under Locke’s assignment of competences. The usual democratic control mechanism for ‘federative’ decision-making, which Locke only hints at, parliamentary ratification, cannot set right a violation of the separation of powers – in this case, the separation of constituent and constituted powers (Patberg 2016) – since the constituted legislative will be acting ultra vires in modifying its own scope and conditions of operation. Even where international treaties do not aspire to constitutional status themselves, they will often have domestic constitutional impact. In practice, they come into effect in most cases in bypassing constituent power. The problem is much exacerbated once international treaties establish separate and independent decision-making bodies. Consider a free trade agreement that not only regulates legislative competences, but instals an independent panel for the arbitration of conflicts, as envisaged, for example, for conflicts over direct foreign investments in the CETA (Comprehensive Economic and Trade Agreement) ‘resistance against tyrannical rule is a manifestation of constituent politics and an affirmation of popular sovereignty’, see Kalyvas (2013). 4 For the debate surrounding ‘Economic Partnership Agreements’ between European and African States, see Hurt et al 2013.

Constituent power in global constitutionalism  321 treaties between the EU and Canada (Kumm 2015). Here, the several ‘federative’ powers aim to establish bodies that not only effectively limit the scope of the member state legislatives but create new decision-making and perhaps, in the long term, norm-setting agencies. Just as legislators are limited to making laws and cannot establish new legislators, the constituted ‘federative’ power cannot outsource its decision-making capacities and constitute new bodies to this effect. Bracketing, for the moment, the issue of when international treaty regimes, in setting up independent arbitration panels or courts, could themselves legitimately claim constitutional status, it is clear that they will modify existing domestic constitutional orders in an unauthorised way, even under conditions of full legislative ratification. Before we turn to supra-state constitutional orders, it seems worth insisting that even where the subjects of international law are properly constituted democratic states, with parliamentary oversight of their ‘federative’ powers in place, they can fail to comply with the democratic programme of instituting public power domestically. This does not, however, entail that international treaties necessarily compromise the democratic credentials of constituent power, or that any consensual coordination between states must violate constitutional government. The systematic issue could be addressed by bringing constituent power back into ‘federative’ decision-making. If the people, and not the legislative, were in control of the federative (cf. Locke 1689[1967], II § 168), the separation of constituent and constituted powers could be upheld. For example, where treaties are subjected to ratification through constituent power, or to extraordinary representative bodies, their constitution-changing impact can begin to be reined in. A general practice of the coordinated, simultaneous articulation of existing constituent powers would go some way towards reconciling international treaty-making with the priority of domestic constituent power. Also, the pouvoir constituant can provide negotiation mandates for the federative power, be it in the name of peace, liberty or welfare, in the constitution itself. However, even if domestic constitutions could in principle be immunised against international legal encroachment through the activation of domestic constituent powers, this may not entail that the same strategy worked for supra-state constitutions, to which we now turn.

CONSTITUENT POWER AND SUPRA-STATE CONSTITUTIONALISATION Seen from the perspective of the Locke-Sieyes tradition, constitutionalisation processes transcending the jurisdiction of single states have been propelled almost exclusively through constituted powers like heads of the executive, arbitration panels, courts, and even non-authoritative ‘systemic’ actors like professional lawyers. Gunther Teubner’s ‘societal constitutionalism’ is especially impressive in its diagnosis of ‘emergent’ regimes that make a travesty of the traditional political logic of authorisation and implementation, and ascribe ‘constitutional self-validation’ to the autonomous self-regulation of legally constituted private actors (Teubner 2014, p. 92; for a systematic overview see Golia and Teubner 2021). Even where we restrict our view to international organisations capable of claiming public authority, it is obvious that the most productive and resilient examples of global constitutionalism do not result from popular activity, or the set-up of extraordinary constituent bodies. On the contrary, it is widely agreed that they result from the combination of two factors. On the one hand, the international legal pedigrees of organisations like the UN and EU stem from member state

322  Handbook on global constitutionalism consensus, likewise those of the World Trade Organization (WTO) and the human rights regime of the Council of Europe. On the other hand, processes of constitutionalisation and constitutional transformation of international organisations have been boosted by the autonomous operation of internally established decision-making bodies such as the Security Council, the European Court of Justice, the Appellate Body of the WTO Dispute Settlement Panel, or the European Court of Human Rights. To the extent that they have not sought authentication from constituent power, both strands of this dual dynamic are bound to violate, as we have seen in the preceding section, the architecture at least of domestic constitutional validity. But state-unbound constitutionalisation processes differ from the cases discussed above in creating comprehensive legal orders that themselves claim constitutional status. It is not clear that we can project either the diagnosed problem or suggested solutions upon them. Two examples can help illustrate how the problem of constituent usurpation reappears in constitutionalisation beyond the state. While the first records the constitutionalisation of an international organisation, the second describes institutional change within an already constitutional framework. The first example concerns the Appellate Body of the WTO Dispute Settlement Panel. In cases like Shrimp/Turtle or Bananas IV, the Appellate Body broadened its decisional competences by introducing unifying ‘constitutionalising’ principles and values that were arguably heterogeneous to the existing WTO treaty regime, among them ‘balancing’ and ‘proportionality’, but also by relying on substantive figures of argument like ‘equal treatment’ and even ‘positive discrimination’ in order to safeguard equality of opportunity in trade law (Cass 2005, Petersmann 2006). Sympathetic observers equate this strategy with ‘the building of a constitutional system by judicial interpretation’, a practice identified as the regular mode of operation of, for example, the US Supreme Court (Cass 2001, p. 52). In contrast to the US Supreme Court working away on a pre-existing constitution, however, the Appellate Body, through generating and determining constitutional values, contents and judicial methods for the WTO regime, has contributed to creating a constitutional order that did not exist beforehand, in claiming access to a higher law of its own making. While the Appellate Body based its claims to authority on widely shared principles, it has not clarified their status with regard to a pouvoir constituant. In cementing the constitutionalisation of international trade law, the Appellate Body therefore violated the Locke-Sieyes condition that constituted actors cannot themselves assume constitution-making powers. It exemplifies the ‘displacement of constituent or democratic power towards judicial actors’ acting as if they were the ‘primary bearers of constitution-making power’ (Thornhill 2012, p. 357). The second example is slightly more contentious. The UN Security Council, in its post 9/11 anti-terrorist resolutions, has not only been accused of strengthening arbitrary domestic and global executive rule, but also of assuming and abusing constituent power. In deciding to hold member states responsible for the freezing of terror suspects’ accounts, on the basis of blacklists open to arbitrary emendation, it transcended its existing legal mandate to decide single cases and assumed the capacity to ‘legislate’ prospective general rules that have a deep and broad impact on states and individuals. In taking on legislative functions, the Security Council has been argued to violate the Locke-Sieyes constraint that constituted bodies are not in a position to authorise changes in their competences (Cohen 2012). Note that this criticism sticks regardless of potential disagreements over where the authority to change competences in the organisational set-up of the UN lies. While the Appellate Body’s closet constitution-making in the WTO has not faced much critical scrutiny, the ‘usurpation’ of constituent authority through the five permanent members of the Security Council, ‘not in order to protect an existing con-

Constituent power in global constitutionalism  323 stitutional order but to institute a new one’, has been seen as cause for alarm (Cohen 2012, p. 277). A transfer of authority from the constitutive or legislative to the executive branch is no less contested in international than in domestic constitutionalism, where the 1933 Enabling Act (Ermächtigungsgesetz), in which a depleted and intimidated German Parliament handed over legislative power to the National Socialist government, still provides a paradigm illustration (Maus 2015). While the WTO and UN examples display constitution-shaping practices by a variety of types of actors, in different bodies, both raise the question of who ought to be conceived of as authoritative constituting and constitution-changing actors. In this, they exhibit the critical function the notion of constituent power can take on in global constitutionalism.

CONSTITUENT POWER IN THE EU While the constitutionalist paradigm in international law originated as much in discussing the United Nations as the EU (Fassbender 1998; Weiler 1999), much of the ‘emerging’ debate on constituent power in global constitutionalism has focused on the latter (Patberg 2013; 2020). The existence of the EU can be traced back to quasi-Lockean treaties, entered into by the member states’ ‘federative’ powers, and has since taken on the character of a ‘federation of states’ (fr. fédération; ger. Bund, see Beaud 2009). Federations of states are set up as permanent associations, yet committed to upholding the separate political existence of their member states (Schmitt 2008, p. 386). While federative law is supreme in important areas, no federal monopoly on law enforcement needs to exist (Brunkhorst 2005). Members are free to join or exit. Crucially, although the constitutional theory of federations of states, at least in Carl Schmitt’s influential 1928 treatise, sees them emerge from a comprehensive ‘constitutional treaty’ or ‘contract’, it rejects the view that a federation can rely on ‘its own constitution-making authority’ (Schmitt 2008, pp. 385, 396). In line with the dual dynamic identified earlier (see above, section on Constituent Power and Supra-State Constitutionalisation) the constitutionalising empowerment of separate decision-making bodies in the EU has relied both on treaty-based investiture (European Parliament) as well as on flagrant self-authorisation (for the self-empowering jurisprudence of the European Court of Justice, see Thornhill 2012). Besides the intergovernmental European Council, which raises questions of domestic constituent legitimacy in the member states (see above, section on Constituent Power – The Traditional View), both the European Parliament and the Court contribute to communal norm-setting through legislation and activist, law-shaping interpretation. Their activity thus risks to run afoul of Locke’s warning that ‘when any one, or more, shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority’ (Locke 1689[1967], II § 212). But it is not clear who could replace ‘the people’ in a supra-state context, or what ‘appointment’ procedures could confer authority on their law-making. From the perspectives of Locke, Sieyes or Schmitt, there are no constituent powers in the EU besides those of its member states. A single pan-European pouvoir constituant in the traditional understanding would require to ‘cut off the chain of authorisation to the Member states and establish itself as the original source of a supranational European authority’ (Preuss 2011, p. 84). A unified demos to institute a unified polity would divest the member state demoi of their authority. Nobody believes that such a homogeneous macro-subject exists, or can serve as an explanatory basis for the EU’s constitutional set-up. Instead, a variety of alternative bearers of constituent power have been proposed, bearing in mind the EU’s character as a multilevel

324  Handbook on global constitutionalism polity. They can be organised along the lines of ‘monistic’ and ‘split’ conceptions.5 At the two opposite ends of the monistic spectrum are the demoi-cratic and the ‘regional cosmopolitan’ views. The regional cosmopolitan reading of the EU acknowledges the continued legal and political relevance of the member states in the multilevel polity, but restricts constitutional relevance to individuals: ‘At the foundational level, there is no competition between the member states and the European level; the basic unit for which both levels can claim legitimacy is the individual, her dignity and autonomy. There is and there can only be one constituting subject even in a multilevel configuration like the EU’ (Eriksen 2016, p. 199f.). The demoi-cratic literature rejects the individualist as well as the supranationalist orientation of the regional cosmopolitan account, but is similarly reductionist in ascribing the role of a ‘plural pouvoir constituant’ exclusively to the peoples of the EU member states (Nicolaïdis 2013, p. 352). Although demoi-crats grant that, genetically speaking, the member states, not their peoples, have brought into existence the European federation of states, they invest member state peoples with constituent authority in order to underline their inter-connectedness and openness in taking each other’s claims into account. Constituent power in the demoi-cratic imagination lies in the peoples severally, not collectively speaking: The aggregate of plural pouvoirs constituants does not create a new pouvoir in addition to those of the several peoples (for the latter alternative, see Cohen 2012, p. 132). The member demoi reflect the enlarged mind-sets of their citizens, but again, in contrast to regional cosmopolitanism, individuals figure as (suitably idealised) members of states rather than of the federative Union. Therefore, under the demoi-cratic interpretation, ‘the accession to a specific democratic multilateral order [or] the exit from such an order’, but also ‘the design and change of the basic rules’ remain in the exclusive competence of the European peoples (Cheneval & Schimmelfennig 2013, p. 342). In criticising the idea that the allocation of constituent power is an all-or-nothing affair, Walker (2009, p. 172f.), Preuss (2011, p. 91) and Habermas (2012) have all turned against the traditional unitary conception of constituent power, as well as against demoi-cratic and regional cosmopolitan reductionism. Habermas locates the EU’s hybrid constituent authority in a pouvoir constituant mixte, i.e. in the dual roles of its individual citizens, as members of their nation-states and as members of the European federation (2012, pp. 34–7). In recognising member state ‘peoples as the other constitution-founding subject’ besides the federated citizenry (2012, p. 35), he acknowledges the demoi-cratic impulse that supra-state constitutionalisation is a higher-order process, starting from constituted elements and committed to preserving their integrity. In Habermas’s view, the justification for the staying power of single state pouvoirs constituant in multilevel systems is that they are to guarantee the preservation of historically accomplished levels of justice and individual rights (2012, p. 39f.). While the domestic pouvoirs constituant are to channel this conservationist function, their Union-wide pendant is to ensure that European citizens, and not executive or judicial elites, are invested as co-masters of their constitutional order. In a reversal of actual EU genealogy, the European component of its split pouvoir constituant is to reflect the contemporary features of the federative polity and provide for a separate, free-standing authorisation of supra-state constitutionalisation. One main indicator for the existence of such a Union-wide component of constituent

In employing the term ‘monistic’, I am not subsuming positions to the Locke-Sieyes-Schmitt conception of a pre-existing collective subject, but draw attention to the fact that they allocate multi-level constituent power at a single level of the complex polity. 5

Constituent power in global constitutionalism  325 power is the European Parliament, the legislation of which is authorised in direct elections by European citizens (Habermas 2017; Preuss 2011, p. 89). This is not the place to discuss the merits and difficulties of the notion of a pouvoir constituants mixte, and the respective virtues and weaknesses of the competing accounts.6 What seems important is that while the accounts diverge in their allocations of a European pouvoir constituant, their authors broadly concur in the function such allocations are meant to serve. None of the accounts are offered as historical or causal theories of EU constitutionalisation, but as reconstructions that speak to the question of EU legitimacy. Unlike the hard-nosed sociological accounts of Thornhill or Teubner, or the attempts of International Relations scholars to rationalise the steps taken toward constitutionalisation (Rittberger and Schimmelfennig 2007), they propose readings of what makes best normative sense of European integration as it is. According to Habermas, for example, the hypothesis of a pouvoir constituant mixte is capable of explaining features of the political system of the EU that would otherwise appear as constitutional anomalies: the right to exit the federation, demonstrated by Brexit’s unilateral termination of membership (Patberg 2018), or the rule of degressive proportionality in the distribution of seats in the European Parliament. The structural idiosyncrasies of the European Parliament are said to make coherent sense once we imagine a hybrid pouvoir constituant would have chosen them (Habermas 2017). None of the authors discussed is under any illusions about the genetic priority of executive agreement, or the stealth integration powers of the European Court of Justice. This leaves us with the question: How can counterfactual allocations of constituent power help resolve the critical issue of constituent usurpation? My suggestion is to read the accounts discussed as initiating, in the allocation of constituent power, a bootstrapping process that may help redress the obvious lacuna of ex ante warrant in EU constitutionalisation. In an inversion of Locke’s view that constituted powers cannot establish new legislators (Locke 1689[1967], II § 141), EU constitutionalists hold that they can do so only on pain of creating new constituent powers that will then partially subject them to their authority. They appear resigned to the fact that most processes of constitutionalisation are de facto usurped, but their critical interpretations do yield criteria of future legitimacy. Legal orders that aspire to constitutional validity can be seen to take on obligations to institutionalise democratic authorisation ex post, reflecting their respective allocations of constituent power. While a demoi-cratic reading will suggest involving the member state peoples, the pouvoir constituant mixte and regional cosmopolitan accounts will aim at effectively empowering European citizens to convey or withhold institutional authorisation. While such bootstrapping empowerments will not obliterate unauthorised original acts of constitutional founding, they may help hold at bay future encroachment by constituted actors.

STATE-UNBOUND CONSTITUENT POWER BEYOND THE EU The EU is a special case, and it would be implausible to transfer the results of the preceding section to the allocation or role of constituent power in other contexts of global constitutionalisation. While the advanced status of integration in the EU multilevel order requires a complex, See Patberg 2017; 2020 for discussions of EU pouvoir constituant mixte, as well as Murkens 2021 and Niesen 2022 for the application of pouvoir constituant mixte to multinational constituent powers within states (the UK). 6

326  Handbook on global constitutionalism perhaps hybrid account of constituent power, other, less integrated international constitutional orders like that of the United Nations may best be analysed along demoi-cratic or intergovernmentalist lines (Fassbender 2007; Cohen 2012, but cf. Habermas 2012, pp. 53–69). Also, not all developments within global constitutionalism are best approached from the federative perspective of state consensus. While such a ‘molecular’ aggregation of constituted ‘atoms’ may give a convincing account for federations of states, the holistic perspective of systems theory may provide a more adequate theoretical framework for the functional integration of sectoral regimes (Teubner 2014; Thornhill 2012). Finally, some international orders, although arguably aspiring to constitutional status, may best be characterised by their avowed absence of constituent power, and therefore demand a different analysis altogether. The United Nations Convention on the Law of the Sea (UNCLOS), in invoking the figure of a ‘common heritage of mankind’ (Art. 136; cf. Pardo 1977), appears to exclude the potential legitimacy of constructive constituent activity in advance, in constitutionalising a hands-off approach under a traditional category of natural law. Despite this diversity, it seems that if the methodology employed in allocating a European pouvoir constituant in the preceding section is sound, an a posteriori approach can be followed throughout to ascribe constituent power based on structural features of the organisations envisaged. This will not capture all of the hopes that were traditionally connected with the notion of a pouvoir constituant, such as the ex nihilo foundation of constitutional orders, or the re-founding in their totality of orders that are conceived of as fundamentally illegitimate (Sieyes 1789[2003], p. 137). In its employment in global constitutionalism, the notion of constituent power will morph from a (presumptively) foundational into a largely transformational category. At the same time, an empirical, yet legitimacy-orientated approach to the various contexts of global constitutionalisation suggests that in transcending the Locke-Sieyes doctrine, global constitutionalism can no longer presume that the allocation of constituent power allows for a tautological answer, or identifies a single definite actor capable of decision-making. Its logic of discovery of constituent powers is largely reactive: It traces their emergence as a by-product of processes of constitutionalisation. Where constitutions emerge, they create their own authorities, thereby superseding the alleged social contract or natural law basis of pouvoirs constituant. We can no longer assume that membership in a pouvoir constituant is fixed before constitution-making has been brought to a definitive end. Since we also assume that under the doctrine of constituent power, processes of constitutionalisation do not allow of a definitive point of termination, this entails that global constitutionalism needs to conceive of the composition of its pouvoirs constituants as open in principle.

CONSTITUENT POWER WITHIN AND BEYOND POLITICAL INSTITUTIONS In the preceding sections, I have argued that processes of global constitutionalisation necessarily trigger the question of constituent power once they institute decision-making bodies, thereby raising claims to authority in limiting domestic and enabling supra-state powers. I have suggested that it is not implausible to continue to describe the need for the popular authorisation of public decision-making by sticking to the notion of constituent power if we manage to sever its traditional connection to a single state demos and allow for its complex allocations to various individual and/or collective actors. The critical bite of this revised notion lies in its

Constituent power in global constitutionalism  327 capacity to diagnose constituent usurpation in processes of constitutionalisation beyond the state, just like its predecessor conception did for the domestic case. Its explanatory potential lies in its contribution to reconstructive accounts of claims to authority that are embodied in supra-state orders aspiring to constitutional status, claims that may be fully discharged only through large-scale institutional change, empowering individuals and peoples to decide on decision-making structures or mandates that were created without their authorisation. Against Locke and Sieyes, it seems right not to overstate the role a pouvoir constituant can play in founding institutions ex nihilo, in taking on an initiative role besides the reactive and transformative roles described above. This does not entail that the category is of no empirical relevance, as the recent surge of interest in the category of constituent power in the EU in times of crises suggests. At least ex negativo, the EU’s lack of capability to effectively and legitimately respond to the contemporary financial, migration and geopolitical crises may be traced back to the fact that its processes of constitution-making have so far all but lacked popular contributions (Ackerman 2015). Yet not all plausible uses of the notion of constituent power in global constitutionalism can be restricted to the ex post empowerment of future constitution-owning actors. In ending this chapter, I want to draw attention to one way in which the notion seems useful beyond its reactive critical and its explanatory employments. Recall Sieyes’ point that neither can a pouvoir constituant be bound by an existing constitution, nor can it be restricted in its forms of expression. This means that besides its institutional function in the formal authorisation of constituted bodies, there is a creative side to the exercise of constituent power that can never be fully institutionalised (Maus 2011, p. 91). Also, in contrast to the state-based understanding of constituent power, a pre-institutional self-activation is always up for grabs in global constitutionalisation. It is true that ‘[i]n the transnational order, there is no uncontested collective such as the one that was assumed in a state context’, and the ‘authority of the constitution’ cannot therefore derive from a pre-existing and consensual ‘construct of the people’ (Nootens 2022, p. 147). On the contrary, the identity and composition of the relevant collectives is open to contestation, for example when migrants, in staging border-crossing protests, articulate their (defeasible) claim to be part of the relevant political public to whose deliberation and transformation they contribute (Celikates 2019). This does not entail, even if invocations of peoplehood are inevitable, that in re-building the fleet at sea, the notion of constituent power cannot be the operative category. No authorisation is needed for people to claim that all authorisation derives from them. This conceptual feature suggests that constituent power is a useful candidate for the self-description of the claims of transnational protest movements. Of course, such movements have grown accustomed to using the reactive languages of ‘resistance’ and ‘disobedience’. While continuing to contest the usurpation of authority, however, it seems that movements can formulate more far-reaching ambitions of political impact where they use the language of constituent power. The World Social Forum is one case in point. Besides its role as a fundamental opposition movement and ritual, its ‘alter-globalisation agenda’ transcends protest and critique. It can be captured in the language of constituent power, in that it attempts to create ‘institutional space(s) that are capable of advancing rights in new and unexpected ways’ (Lang 2017, p. 30). In the context of the EU, some transnational social movements such as DieM25, Attac, PlanB or Eurexit are already now using public narratives of pouvoir constituant when they aim at a large-scale transformation (Niesen 2019; Patberg 2020, pp. 41–67). Like claims to justified ‘disobedience’, invoking constituent power gives dissidents a claim to non-compliance with usurped

328  Handbook on global constitutionalism authority. More constructive in its aims than mere ‘resistance’ claims, ‘constituent’ language channels claims to eventual self-government, not just the absence of tyranny.

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330  Handbook on global constitutionalism Scheuerman, William E. (2019). ‘Constituent power and civil disobedience: Beyond the nation-state?’, Journal of International Political Theory 15, 1, 49–66 Schmitt, Carl (2008[1928]). Constitutional Theory. Edited and translated by J. Seitzer. Durham, NC: Duke University Press. Sieyes, Emmanuel (1789[2003]). ‘What is the third estate?’ In E. Sieyes, Political Writings. Edited by M. Sonenscher. Indianapolis: Hackett, pp. 92–162. Teubner, Gunther (2014). ‘Transnationaler pouvoir constituant? [‘Transnational constituent power?’]’, in G.-P. Calliess (ed.), Transnationales Recht. Stand und Perspektiven. Tübingen: Mohr, 77–94. Thornhill, Chris (2012). ‘The formation of a European Constitution’, International Journal of Law in Context 8, 3, 354–93. Walker, Neil (2009). ‘Reframing EU constitutionalism’. In J.L. Dunoff and J.P. Trachtmann (eds), Ruling the World? Constitutionalism, International Law, and Global Governance. Cambridge, Cambridge University Press, pp. 149–76. Weiler, Joseph (1999). The Constitution of Europe, Cambridge: Cambridge University Press. Wiener, Antje (2014). A Theory of Contestation. Berlin: Springer.

23. Human rights as transnational constitutional law Samantha Besson1

INTRODUCTION Human rights are often taken to epitomize the existence of global constitutional law2 or, at least, of global constitutionalism (see Klabbers et al 2009; Wiener et al 2012). Since 1945, human rights have been protected through both domestic (constitutional) human rights law (DHRL) and international3 (universal and/or regional4) human rights law (IHRL), and monitored and interpreted by their corresponding domestic and international human rights institutions.5 This has led to well-known and extensive discussions about the dual (see Neuman 2003; Waldron 2011; Besson 2015a, 2017) constitutionalization (or positivization) of human rights and/or about the duality of constitutional law itself (see Kumm 2009, 2012; Besson 2009a, 2014; Krisch 2010). Previous discussions have explored this constitutional duality by looking at how international human rights law may be regarded as a (formal or material) constitutional regime within international law (see Gardbaum 2008; Besson 2009a), on the one hand, and at how it may endorse a constitutional function domestically and/or internationally (see Gardbaum 2008; Besson 2015a), on the other. This chapter takes the debate one step further and complements these dual approaches to human rights law with a more integrated conception or, in short, with a truly transnational or global6 one. It proposes to explore the extent to which the domestic and international human rights law regimes are complementary and hence This is an updated version of a chapter first published in 2017. Many thanks to Tony Lang and Antje Wiener for their invitation to contribute; to Folke Tersman, Patricia Mindus and the participants in the Higher Philosophy Seminar at the University of Uppsala on 26 February 2016 for their comments; to José Luis Martí and Andreas Føllesdal and the participants in the Barcelona workshop on 6–7 May 2016 for their feedback; and to Allen Buchanan for our many exchanges on human rights epistemology. I would also like to thank Gaelle Mieli for her research and editorial assistance. 2 ‘Constitution’ or ‘constitutional law’ is used here in a thick sense to refer to a set of legal norms of higher rank (entrenched; in a formal sense) and whose content is fundamental or constitutive (in a material sense). ‘Constitutionalism’ amounts to any kind of theory pertaining to the existence or content of constitutional law. See also Besson (2009a). 3 This chapter focuses on the European Convention on Human Rights (ECHR) and the European Court of Human Rights’ (ECtHR’s) case-law. Some of the argument may then be generalized to other regimes in IHRL, as I will explain. 4 Both ‘regional’ and ‘universal’ regimes of international human rights law are embraced under the umbrella notion of ‘international human rights law’. Their relations should not, however, be those between regimes of international law (see Brems 2018; Besson 2018a). See, more generally, Burgorgue-Larsen 2020. 5 Unless specified otherwise in the course of the argument, domestic and international human rights ‘institutions’ include courts as much as other legislative or administrative bodies. 6 Of course, the term ‘global’ could also be used to refer to the universal scope of IHRL by contrast to their regional scope. In this chapter, however, it will be used interchangeably with ‘transnational’, to 1

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332  Handbook on global constitutionalism best approached together as ‘transnational human rights law’ (see McCrudden 2000, p. 530; Hessler 2005, p. 37; Waldron 2005, p. 423, 2011, 2012; Besson 2015a, 2017) or, as it is sometimes also referred to, as ‘transnational constitutional law’ (see McCrudden 2000, p. 530). While scholars have mapped transnational aspects of the human rights practice, and especially transnational comparisons in domestic (constitutional) and international human rights law (see, for example, McCrudden 2000, 2007, 2013, 2015, 2018; Halmai 2012; Hirschl 2014; Jackson and Tushnet 2014; Jain and Versteeg 2023), this is not yet true of their theoretical or philosophical underpinnings. Curiously, the exact nature, justifications, determination and implications of the ‘transnationality’ of human rights law remain largely under-theorized (see McCrudden 2000, pp. 522, 532; see, however, Waldron 2005, 2011, 2012; Besson 2015a, 2017, 2019a; McCrudden 2018). This chapter aims to remedy this theoretical gap. Starting from what it describes as the transnational practice of human rights law and developing the best interpretation thereof, the chapter discusses what transnational human rights law both does and should amount to, and especially from where it could draw its legitimate authority. The chapter’s argument is three-pronged, accordingly. The first section differentiates the notion of transnational human rights law from other conceptions of transnationality used in legal scholarship. In the second section, the chapter develops a transnational interpretation of the domestic and international regimes of human rights law that both fits and justifies their dual and complementary practice. The third section accounts for some of the central methods for determining transnational human rights law, and in particular human rights comparison and the transnational consensus it identifies. The chapter concludes with a discussion of some implications for the future practice of domestic and international human rights law.

THE TRANSNATIONALITY OF HUMAN RIGHTS LAW DEFINED The ‘transnationality’ of human rights law captures what is specific about its sources or law-making processes, both domestic and international, and about each of them taken individually or together with the others (see also Besson 2015a, 2017). More specifically, the transnational nature of human rights law corresponds, as I argue in the next section, to the dual and complementary processes or sources through which domestic and international human rights laws are made, interpreted and enforced, and hence mutually validated and legitimated. In connection with law generally, transnationality has, first, been used to refer to and qualify, alternatively or in combination (see, for example, Scott 2009; Shaffer 2016), a variety of legal dimensions. It has been used by reference to, for instance: a legal order/a set of legal norms or standards distinct from domestic and international law (see, for example, Scott 2009, pp. 873–4) or, on the contrary, combining both (see, for example, Halliday and Shaffer 2015; Shaffer 2016); private legal subjects and/or law-makers that are distinct from those of public domestic and international law (see, for example, Muir Watt 2011; Michaels 2014); a legal context including cross-border issues or problems involving more than one state or jurisdiction (see, for example, Jessup 1956, pp. 2–3, 136); a complex type of normativity beyond legality that mixes social, religious, moral and legal norms; or, finally, a pluri-disciplinary (often, encompass all the law-making processes or sources of human rights law whether domestic or international and, in the latter case, whether regional or universal.

Human rights as transnational constitutional law  333 socio-legal) and/or critical method in legal theory (see, for example, Teubner 1996; Twining 2009; Scott 2009; Zumbansen 2013, 2015) or even in legal education (see, for example, Arjona et al 2015; Zumbansen 2015). Human rights, secondly, are often mentioned as a paradigm example in discussions of transnational law. Their transnational dimensions may match some of the previous dimensions of transnational law, albeit not necessarily all of them. The qualification ‘transnational’ has been used to refer to and qualify, alternatively or in combination (see, for example, Vandenhole 2012; Gibney and Vandenhole 2014), specific dimensions of the human rights practice, and for instance the following: the identity of human rights duty-bearers beyond the state, and especially private (individual or collective) persons (see, for example, Vandenhole 2012) and/ or international institutions (see, for example, Besson 2015b; Vandenhole 2015); the making of human rights standards, whether they are private law (see, for example, Vandenhole 2012) or even soft law standards (see, for example, Engle Merry 2015); domestic fora of human rights litigation outside of or including the state of jurisdiction (see, for example, Zumbansen 2005), of judicial dialogue on human rights (see, for example, Zoethout 2015) or of cross-border human rights advocacy by non-state actors (see, for example, Keck and Sikkink 1998); the scope of states’ human rights duties beyond their respective (territorial and extraterritorial) jurisdiction (see, for example, Skogly and Gibney 2002; Besson 2015b, 2018b, 2023; Vandenhole 2015; Altwicker 2018; Skogly 2021), and what becomes their application’s condition or trigger if it is no longer a matter of jurisdiction; the method of determination and interpretation of human rights’ duties, whether it is by analogy, comparison, borrowing (see, for example, Klug 2005); or, finally, a method of enquiry or field of socio-legal research (see, for example, Klug 2005). None of these conceptions of the transnationality of human rights law captures this chapter’s understanding of human rights law as an integrated or common regime of law, however. Importantly, moreover, the transnationality of human rights law, as it is understood in this chapter, should not be conflated with legal plurality (often also referred to as ‘legal pluralism’; Besson 2009b, 2012a, 2015c, 2019b) in human rights law, whether in the socio-legal sense of the concept or the strictly legal one. Starting with the former, first, that is to say legal plurality in the socio-legal or anthropological sense (see Engle Merry 1988; Zumbansen 2010), the proposed argument is compatible with the plurality of sources of norms at play in a given legal situation, some stemming from official or public law and others less so. However, this is not what the transnationality of human rights law discussed here is about. The proposed argument focuses instead on human rights as public or official legal rights and duties, and not on other types of norms applicable in the legal context such as religious norms or private norms in particular. Its object is the human rights’ duties established by and for states (see Besson 2013a, 2015b) and hence those that are generated through the states’ domestic and international public law. With respect to the latter, secondly, it is important to emphasize that the relationship propounded between domestic and international human rights law is one of complementarity, and not of competition. The pluralistic qualification should be retained for the relations between competing international legal norms and regimes, including within international human rights law itself (for instance, between regional and universal international human rights law or within any of them), that protect the same object in different ways and between which normative conflicts may arise. It is not the way domestic and international human rights law relate in practice, however, and not the way I argue they should either (contra: Krisch 2010; Kumm

334  Handbook on global constitutionalism 2012). Both sets of legal norms protect the same rights, and there can be clashes between domestic and international institutions’ interpretations of these same rights. However, these interpretations do not compete, as we shall see, but apply only in a sequence and in order to complement one another. This relationship of complementarity (or subsidiarity stricto sensu; Besson 2016b) cannot be qualified as pluralistic, as a result (see Hessler 2005; Besson 2014, 2015a, 2019b).

THE TRANSNATIONALITY OF HUMAN RIGHTS LAW JUSTIFIED What the complementarity or transnationality of human rights law captures is how both the domestic and the international legal norms protecting human rights relate in a way that is uncommon in international law (Besson 2015a; see also McCrudden 2015, pp. 536–8): they are not only situated in a relationship of top-down transposition and/or enforcement of an international standard in domestic law, but also in a relationship of bottom-up international recognition and consolidation of the transnational or common law stemming from different domestic legal orders into an international standard. More specifically, that relationship is mutual, on the one hand, to the extent that the domestic and international human rights law-making and law-ascertaining processes are comparative and hence transnational at both the domestic and the international levels. It is also dynamic, on the other hand, to the extent that it does not only start domestically and end internationally, but there is constant normative toing and froing between the two levels of legal protection. The minimal content of international human rights law evolves together with that of their transnational domestic practice as a result (see also Brems 2009). This usually implies a levelling-up of the international minimal human rights standard through the corresponding domestic authorities’ duties to maximize human rights protection, but we cannot preclude some degree of levelling down. The latter is made harder by the international entrenchment of the transnational minimal human rights standard. Because that standard requires the same level of transnational commonality to evolve one way or the other, levelling down is rare in practice (on moral progress and human rights, see, for example, Buchanan 2013). We may wonder about the justification for this transnational legality of human rights in practice. Prima facie, indeed, international law has the kind of universal material scope that matches that of universal moral rights (see also Waldron 2016). It would seem therefore to provide the privileged order for the legal protection of human rights, knowing that international human rights law claims to bind all states and hence to be universally justified. This applies whether legal human rights are merely considered to recognize existing universal moral rights, or (also) to contribute to these rights’ specification or even to their creation (on the relationship between moral and legal human rights, see Besson 2012b, 2022). The primary justification for the transnational legality of human rights lies in the egalitarian and accordingly democratic dimension of human rights. As I have argued elsewhere, human rights are constitutive of our equal basic moral status (see Buchanan 2010b; Besson 2012b, 2020a). It follows that human rights’ holders and duty-bearers should participate in the process of recognizing and specifying their equal and mutual rights. Accordingly, the process through which their recognition and specification take place ought to be egalitarian and public, and include all those whose rights are affected and whose equality is at stake. What this means is that human rights should be recognized and specified as equal rights through a procedure

Human rights as transnational constitutional law  335 that guarantees their public equality, that is, a democratic procedure. As a result, given international law’s inherent democratic limitations, but also because international human rights’ duties bind states to people under their jurisdiction and not some international community of states and/or individuals (see Besson 2015b, 2023), using international law as the sole order where we should recognize fundamental and general human interests as sufficiently important to generate duties of states at the domestic level would not be sufficiently egalitarian and democratically legitimate (see Cohen 2008, pp. 599–600; Besson 2013b). At the same time, of course, certain minimal egalitarian conditions have to be met for the domestic recognition and specification of human rights to be democratic. These minimal conditions of public equality should be guaranteed externally and constrain the domestic polity. This is where international human rights law, and the minimal democratic guarantees it constitutes and consolidates over time such as the right to political participation, freedom of expression and association and non-discrimination rights, come into the picture. However, for these minimal democratic and human rights constraints in international law to be democratically legitimate in the first place, they should draw from the transnational common ground shared in the practice of states that regard each other as democratic. Importantly, they need not have (yet) been protected as rights to be recognized as international human rights, but only substantially realized so as to constitute a minimal common ground among democratic states. International human rights law’s democratic legitimacy requires, therefore, that it originates from the transnational consolidation of the domestic human rights law and practice of democratic states, albeit constraining these states minimally in return at the same time (see Besson 2011, 2013b, 2015a, 2019a). Later on, only the domestic human rights practices regarded as minimally democratic according to the common standards entrenched in international human rights law may and should be considered in the further transnational development of these minimal international human rights standards and as potential candidates for entrenchment into a new international minimal human rights standard (see Hessler 2005, p. 48ff). This democratic argument for the legitimacy of the transnationality of human rights law, and the mutual validation of domestic and international human rights law, corresponds to what I have referred to elsewhere as the mutual democratic legitimation of domestic and international human rights law (see Besson 2011, 2013b, 2015a, 2019a; see also Buchanan 2004, pp. 187–9, 2011; Buchanan and Powell 2008, pp. 348–9). The interaction between (international) human rights and (domestic) citizens’ rights is also reminiscent of Hannah Arendt’s universal right to have particular rights and the complementarity between the universal and the particular. Human rights are first specified as citizens’ rights, but citizens’ rights progressively consolidate into human rights which constrain them in return while also developing further through them (see Arendt 1951; Benhabib 2011, pp. 16, 126; Habermas 2011, pp. 31–2, 36–8). Besides the democratic justification for the transnational legalization of human rights, I should also mention a second justification: an epistemic justification. Given the concrete nature of human rights duties, their existence and content is best identified in domestic circumstances. Human rights being equal rights, this is indeed the socio-comparative context in which the general threats to the interest protected by a given human right can be assessed and the potential corresponding duties identified (see Besson 2012b, 2013a). Again, however, this specification requires some minimal epistemic conditions to be respected. These conditions are best imposed from the outside through international human rights law (for example, freedom of assembly, freedom of speech, religious freedom and non-discrimination rights). However, this should be done in a way that starts from the epis-

336  Handbook on global constitutionalism temic conditions experimented and tried out previously in domestic circumstances in the context of the recognition of human rights and the determination of the corresponding duties. As before, once these minimal epistemic conditions are entrenched internationally, only the practice of the states embodying them shall be considered for the further interpretation and development of international human rights law and with a view to considering their new common interpretations as part of the international standard. This approach to human rights epistemology, like Allen Buchanan’s, relies on a moral epistemology that is ‘social’ (see Buchanan 2010a, 2019), and even socio-political given how human rights are constitutive of our public status as equals. Because our social context may also distort our beliefs about our rights, the epistemic conditions experimented and tried out previously in domestic circumstances where human rights have developed should be those where these rights are already substantively realized. This is what Buchanan has described as the ‘reflexive’ dimension of the moral epistemology of human rights (see Buchanan 2019). These minimal epistemic conditions for the determination of human rights come close, in their role and content, to the minimal democratic conditions referred to earlier. It is actually common in practice to see a combination of the democratic and the epistemic justifications for the complementarity of domestic and international human rights law (see ECtHR, S.A.S. v France, para. 129). From a democratic theory perspective, the combination is not surprising since epistemic justifications are often put forward for democratic procedures themselves (see, for example, Martí 2006). What this means for the epistemology of human rights, is that the minimal epistemic conditions actually amount to some minimal form of substantive realization of democracy. A ready objection to the epistemic argument for transnational human rights law, and arguably also to the democratic one, is the universality of human rights (‘universality objection’). Someone could indeed consider that the transnational consolidation of domestic specifications of human rights may lead to recognizing parochial conceptions of human rights as minimal international human rights standards, thereby contradicting their claim to a universal justification (see, for example, Brems 1996; Benvenisti 1999). The best way to reply to the universality objection is by bringing in the more widespread and exact reverse objection: the ‘parochialism-objection’ to the universality of international human rights law itself. The latter objection is usually opposed to the claimed universality of international human rights law and based on what it regards as the largely parochial or cultural conceptions stemming from one dominant culture or set of cultures and imposed by international human rights law in the name of universality on others. The objection has different grounds: international human rights law may be parochial because there is no universal moral standard to start with or, in a more pluralist version of the objection, because there is more than one universal moral standard, on the one hand, or, in a less sceptical version of the objection, because of our epistemic limitations, on the other (for the other parochialism-objections to the universality of human rights, see Buchanan 2008, 2017; Besson 2022). It is the latter form of the objection that is antithetical to the universality objection opposed to the proposed account of transnational human rights law and the one I focus on now. In reply to the universality objection, we may argue that the transnational making of human rights law actually amounts to a way to prevent parochial conceptions from being too quickly entrenched into international human rights law, and hence to protect the claimed universality of human rights from parochialism. As I argue in the next section, starting from many distinct domestic human rights’ interpretations and comparing them on a transnational scale in

Human rights as transnational constitutional law  337 order to identify a common ground, contribute to questioning the future international human rights standard and hence to making it less parochial. It prevents one domestic conception in particular from becoming too quickly, and without transnational probing, the international conception, and hence the alleged universal conception. In short, transnational human rights law could be seen as exhibiting a form of ‘good parochialism’ that should not be too quickly discarded if we are to protect the universality of human rights from the epistemic objection of ‘bad parochialism’. Importantly, this epistemic argument for transnational human rights law does not mean that human rights should be regarded as ‘self-certifying’ (see Buchanan 2019). It is not because we regard a particular transnational practice as amounting to the realization of transnational human rights law that should be entrenched as a minimal international standard that that practice necessarily corresponds to the (however pluralistic) universal moral truth or, later on, that it captures one of its (however multi-faceted) correct moral interpretations (see also Waldron 2016; Besson 2020b). We may be entirely wrong about them and should be ready to correct them ourselves. However, it is likely that we will be better able to ascertain what human rights are in conditions where what we think, after having compared our respective reasoning on a transnational scale, to be human rights are realized, than doing so alone either on a merely domestic or on a purely international scale. This is not to say that there are no epistemic qualities in existing international human rights institutions, such as, for example, their inclusiveness, representativeness or deliberativeness (on these epistemic qualities, see Buchanan 2011, 2017), but only that these are actually best understood as complementary and transnational in their functioning rather than unilateral and top-down. That is, the epistemic qualities usually granted to international human rights law and institutions are exactly those captured by their transnationality.

THE TRANSNATIONALITY OF HUMAN RIGHTS LAW DETERMINED The transnationality of human rights law so justified has direct implications for how we should understand its sources, both domestic and international, that is, for the way human rights law is made and specified in practice (for a full argument, see Besson 2016a, 2017, 2019a). One common methodological feature to sources of human rights law is that they all use transnational human rights comparison to determine the existence of a transnational human rights consensus. Transnational Human Rights Comparison Since 1945, human rights comparison has become the main and shared method of domestic (see Waldron 2011, p. 423; Waldron 2016) and international human rights’ institutions alike (see McCrudden 2014, 2015). It enables them to identify commonalities in the transnational domestic practice of human rights and, accordingly, to consolidate them into minimal international human rights standards. Importantly, these domestic and international comparisons pertain to both domestic and international human rights law and not only to one of them, and this whether it is operated by an international human rights body or court or domestic ones.

338  Handbook on global constitutionalism What differentiates transnational human rights comparisons from more traditional nineteenth-century constitutional comparisons is not only their authors and their scope, but also their function. If there is human rights comparison in the contemporary dual human rights regime, it is because human rights law is transnational and shares a common ground, not merely because it is interesting, or even strategic, to compare domestic practices and borrow from some of them (Besson 2019a). Because human rights’ comparison plays a distinct function in transnational human rights law, its justifications are also distinct from those usually put forward for comparative constitutional law in general, such as conceptual clarification in particular (see McCrudden 2000; Waldron 2005; Waldron 2011, pp. 411, 418, 420 ff.).7 This has implications, in turn, for the authority of comparative human rights law and the transnational common law identified. Its authority is not only theoretical, for instance when a comparison is informative or persuasive, as is the case in comparative constitutional law in general (see McCrudden 2000, p. 513), but truly practical and hence binding (Waldron 2012, pp. 62, 76, 93; Besson 2019a). This applies to international human rights’ courts and institutions, but also arguably to domestic ones. The first justification for the authority of human rights comparison is democratic. Ironically, however, one of the most serious critiques usually put forward against the legitimate authority of comparative human rights law is the democratic critique. It is generally argued indeed that using human rights’ interpretations stemming from other domestic jurisdictions amounts to a clear violation of the democratic principle (see McCrudden 2000, p. 501ff, 529ff; Waldron 2011, p. 412ff). It follows from this chapter’s argument about the mutual validation and legitimation of domestic and international human rights law, on the contrary, that comparative constitutional law provides the best way to grasp what is common among democratic states’ human rights practice and hence what democracy amounts to minimally (see Buchanan 2004, p. 189; Besson 2018a). Independent from, or additional to the democratic justification, another justification for the authority of human rights comparison is epistemic. It echoes the epistemic justification for the transnationality of human rights law discussed previously in the chapter. Based on the proposed reflexive social-moral epistemology of human rights (see Buchanan 2010a, 2017), one may consider that human rights comparison is the best way to determine what human rights are. Because our beliefs may be distorted by our parochial social practices, it is important that a comparison takes place between different domestic and international human rights law and institutions, and therefore has a transnational scope. Methodologically, human rights comparison is grounded in the universality of human rights, but takes into account the need for local socio-political contextualization in the specification and interpretation of their corresponding duties and content (Besson 2019a). So doing, it enables the constant passage from the universal to the particular, and from the latter to the former. Transnational Human Rights Consensus Unlike that which may be the case in other comparative law contexts, the comparative outcome that should be identified through human rights comparison is known in advance: this is the To that extent, it may even be misleading to refer to it as ‘comparative international human rights law’ as yet another branch of comparative international law (McCrudden 2015). Comparison is indeed inherent to the implementation of international human rights law itself (see Besson 2018a). 7

Human rights as transnational constitutional law  339 human rights’ ‘common law’, ‘common ground’ or ‘consensus’ across the various domestic interpretations of human rights compared (Besson 2019a). The minimal common ground so identified may then, if it is validated by international human rights law and institutions, become entrenched as a minimal international human rights standard that can bind domestic authorities in return and be submitted to their further interpretation and practice. The terms used to capture the common ground in transnational human rights law vary considerably. The most common term is international, global or transnational ‘consensus’. It is the case of the ‘European consensus’ in the ECHR’s system (see Wildhaber et al 2013), but we also find references to ‘regional consent’ in the American Convention on Human Rights’ (IACHR’s) system (see Neuman 2008; Besson 2018a). The ‘European consensus’, or ‘converging approach’, corresponds to a form of interpretative custom of the ECHR developed among state parties (see Ziemele 2012). It is based on European states’ general practice (the latter need not be unanimous, and is mostly based on a ratio of six out of ten states, on average; see Wildhaber et al 2013), on the one hand, and their opinio juris, on the other. The two elements constitutive of the consensus are verified by reference to various legal materials: some domestic (for example, domestic legislation or judicial decisions) and some international (for example, other international human rights treaties or norms and their interpretations by their respective international organs); some soft and some hard; some internal to some or all the states parties to the ECHR and some external to that group of states (see ECtHR, Demir and Baykara v Turkey, paras 85–6; ECtHR, Sitaropoulos and Giakoumopoulos v Greece, para. 66; see also McCrudden 2013; Ziemele 2012; Wildhaber et al 2013; Dzehtsiarou 2015; Besson 2017). The latter comparative reference to international law external to European states parties, or, at least, to those at stake in a given case, and hence to international law that does not bind them, has been contested (see Letsas 2010). The court has since then confirmed its universalizing practice, however (see ECtHR, Case of the National Union of Rail, Maritime and Transport Workers v the United Kingdom, paras 76, 98). What matters, it has stressed, is that the relevant evidence ‘denote[s] a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show[s], in a precise area, that there is common ground in modern societies’ (ECtHR, Demir and Baykara v Turkey, para. 86). European states’ consensus constrains the court’s evolutive interpretation of the ECHR and guides it. According to the ECtHR, the reference to consensus and the evolution of state practice actually amounts to a duty, and not just a possibility (see ECtHR, Sitaropoulos and Giakoumopoulos v Greece, para. 66; ECtHR, Demir and Baykara v Turkey, para. 85: ‘can and must’). More specifically, the ‘European consensus’ so defined has been used to establish the degree or intensity of the margin of appreciation of states when specifying and restricting international human rights’ duties (see, for example, Spano 2014; Dzehtsiarou 2015; Besson 2016b). Regrettably, the ‘European consensus’ is not the sole criterion or test at play in the ECtHR’s reasoning pertaining to the margin of appreciation, however, and its application remains largely unpredictable as a result (see, for example, Dzehtsiarou 2015). Nevertheless, there are ways for the European consensus to be streamlined, and then generalized into other regional, but also universal human rights regimes (Besson 2018a, 2019a; contra: Shany 2021). Thus, the ‘transnational human rights consensus’ could work as the effectivity test for human rights’ subsidiarity qua complementarity (see, for a full argument, Besson 2016b).

340  Handbook on global constitutionalism Referring to the transnational consensus of democratic states as the minimal effective standard of human rights protection is the way to secure the democratic legitimacy of international human rights institutions’ or courts’ review without, however, turning international human rights case-law into an incoherent and hence non-egalitarian patchwork of individual domestic albeit democratic specifications (contra: Gerards 2014; Letsas 2018). Of course, the existence or absence of a transnational human rights consensus should only protect states’ margin of appreciation within the egalitarian limits of subsidiarity, that is, provided non-discrimination rights and the fundamental core of human rights are not at stake. Conversely, and for the same democratic reasons, setting aside the priority of domestic authorities, and especially reducing their margin of appreciation, in cases that pertain to political rights that are therefore closely related to democracy, requires a strong degree of transnational consensus or, depending on the circumstances, may not even be justified in certain rare cases (see, for example, ECtHR, Sitaropoulos and Giakoumopoulos v Greece, paras 63–5; see also Besson and Graf-Brugère 2014, pp. 953–4). At this point, we may object that not all states are democratic, and that this jeopardizes the democratic argument for a democratic transnational consensus in human rights law (for a full discussion, see Besson 2019a). This is a false problem, first, because all states parties to international human rights treaties have to be democratic as much as they have to respect human rights. Thus, their consensus has to be incrementally democratic, just as they incrementally have to protect human rights. Secondly, more specifically, when states have not ensured sufficient democratic deliberation in a given human rights case, their margin of appreciation should be limited or non-existent because the condition for the latter, that is domestic reason-giving, is not fulfilled (see Føllesdal 2018). As I explained before, in the absence of the latter, states should not be allowed to contribute further to the transnational development of the international human rights standard (Besson 2019a).

CONCLUSIONS While constitutional law scholars have mapped much of the transnational practice of human rights, including the practice of comparison that prevails in domestic (constitutional) and international human rights law, this is not yet true of their theoretical underpinnings. Aiming at filling this gap, and after some clarifications of the concept of transnationality in law in general and in human rights law in particular, the chapter started by justifying the transnationality of human rights law on democratic and epistemic grounds, before drawing implications for its determination methods whose practice remains largely irregular and in need of justification, that is, human rights comparison and the transnational human rights consensus it thereby identifies. From a political perspective, the proposed transnational reading of human rights law has important implications for the way we should deal with the growing resistance against international human rights law and courts in democratic and less states alike. Those courts cannot and should not be identified with other international courts that enforce international law top-down and claim ultimate interpretative authority over domestic courts. As a result, domestic judges, and institutions more generally, should not fear to engage with international human rights law and courts for it is the only way international human rights law can develop and be interpreted transnationally and hence democratically. When they deliberate with one another over interna-

Human rights as transnational constitutional law  341 tional human rights law, domestic institutions act neither as international law’s agents nor as self-interested actors, contrary to what some scholars have argued, but as primary interpreters of our transnational constitutional values of democracy and human rights.

REFERENCES Cases Case of the National Union of Rail, Maritime and Transport Workers v the United Kingdom, ECtHR (Fourth section), 8 April 2014, 31045/1. Demir and Baykara v Turkey, ECtHR (Grand Chamber), 12 November 2008, 34503/97. S.A.S. v France, ECtHR (Grand Chamber), 1 July 2014, 43835/11. Sitaropoulos and Giakoumopoulos v Greece, ECtHR (Grand Chamber), 15 March 2012, 42202/07.

Books and Articles Altwicker, T. (2018), ‘Transnationalizing rights: International human rights law in cross-border contexts’, European Journal of International Law, 29 (2), 581–606. Arendt, H. (1951), The Origins of Totalitarianism, London: Penguin, pp. 147–82. Arjona, C., J. Anderson, F. Meier and S. Robart (2015), ‘What law for transnational legal education? A cooperative view of an introductory course to transnational law and governance’, Transnational Legal Theory, 6 (2), 253–86. Benhabib, S. (2011), Dignity in Adversity – Human Rights in Troubled Times, Malden, MA: Polity Press. Benvenisti, E. (1999), ‘Margin of appreciation, consensus, and universal standards’, NYU Journal of International Law and Politics, 31 (4), 843–54. Besson, S. (2009a), ‘Whose constitution(s)? International law, constitutionalism and democracy’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge: Cambridge University Press, pp. 381–407. Besson, S. (2009b), ‘European legal pluralism after Kadi’, European Constitutional Law Review, 5 (2), 237–64. Besson, S. (2011), ‘Human rights and democracy in a global context – decoupling and recoupling’, Ethics and Global Politics, 4 (1), 19–50. Besson, S. (2012a), ‘“The truth about legal pluralism”, review of Nico Krisch’s Beyond Constitutionalism: The Pluralist Structure of Postnational Law’, European Constitutional Law Review, 8 (2), 354–61. Besson, S. (2012b), ‘The egalitarian dimension of human rights’, Archiv für Sozial- und Rechtsphilosophie Beiheft, 136, 19–52. Besson, S. (2013a), ‘The allocation of anti-poverty rights duties – our rights, but whose duties?’, in K.N. Schefer (ed.), Poverty and the International Economic Legal System – Duties to the World’s Poor, Cambridge: Cambridge University Press, pp. 408–31. Besson, S. (2013b), ‘The legitimate authority of international human rights’, in A. Føllesdal, J.K. Schaffer and G. Ulfstein (eds), The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, Cambridge: Cambridge University Press, pp. 32–83. Besson, S. (2014), ‘European human rights pluralism: Notion and justification’, in M. Maduro, K. Tuori and S. Sankari (eds), Transnational Law – Rethinking European Law and Legal Thinking, Cambridge: Cambridge University Press, pp. 170–205. Besson, S. (2015a), ‘Human rights and constitutional law: Patterns of mutual validation and legitimation’, in R. Cruft, S.M. Liao and M. Renzo (eds), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, 279–99. Besson, S. (2015b), ‘The bearers of human rights duties and responsibilities for human rights – a quiet (r)evolution’, Social Philosophy & Policy, 32 (1), 244–68. Besson, S. (2015c), ‘“International law’s relative authority”, a review of Nicole Roughan’s Authorities: Conflicts, Cooperation and Transnational Legal Theory’, Jurisprudence, 6 (1), 169–76.

342  Handbook on global constitutionalism Besson, S. (2016a), ‘Legal human rights theory’, in K. Brownlee, K. Lippert-Ramussen and D. Coady (eds), Blackwell Companion to Applied Philosophy, London: Blackwell Wiley, pp. 328–41. Besson, S. (2016b), ‘Subsidiarity in international human rights law – what is subsidiary about human rights?’, American Journal of Jurisprudence, 61 (1), 69–107. Besson, S. (2017), ‘The sources of international human rights law: How general is general international law?’, in S. Besson and J. d’Aspremont (eds), Oxford Handbook on the Sources of International Law, Oxford: Oxford University Press, pp. 837–70. Besson, S. (2018a), ‘The influence of the UN covenants on states parties across regions – Lessons for the role of comparative law and regions in international human rights law’, in D. Moeckli, H. Keller and C. Heri (eds), The UN Human Rights Covenants at 50: Their Past, Present and Future, Oxford: Oxford University Press, pp. 243–76. Besson, S. (2018b), ‘Shared responsibilities under the ECHR – concurrent jurisdictions, duties and responsibilities’, in A. van Aaken and I. Motoc (eds), The ECHR and General International Law, Oxford: Oxford University Press, pp. 155–77. Besson, S. (2019a), ‘Comparative law and human rights’, in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law, 2nd edn, Oxford: Oxford University Press, pp. 1222–49. Besson, S. (2019b), ‘Why and what (state) jurisdiction: Legal plurality, individual equality and territorial legitimacy’, in I. Klabbers and L. Palombella (eds), The Challenge of Inter-Legality, Cambridge: Cambridge University Press 2019, pp. 91–132. Besson, S. (2020a), ‘The Human Right to democracy in international law – coming to moral terms with an equivocal legal practice’, in A. von Arnauld, K. von der Decken and M. Susi (eds), The Cambridge Handbook of New Human Rights. Recognition, Novelty, Rhetoric, Cambridge: Cambridge University Press, pp. 481–9. Besson, S. (2020b), ‘L’autorité légitime du droit international comparé: Quelques réflexions autour du monde et du droit des gens de Vico’, in S. Besson and S. Jubé (eds), Concerter les civilisations: Mélanges en l’honneur d’Alain Supiot, Paris: Seuil, pp. 49–60. Besson, S. (2022), ‘Justifications’, in D. Moeckli, S. Shah and S. Sivakumaran (eds), International Human Rights Law, 4th edn, Oxford: Oxford University Press, pp. 23–42. Besson, S. (2023), ‘Extraterritoriality in international human rights law: Back to the jurisdictional drawing board’, in A. Parrish and C. Ryngaert (eds), Research Handbook on Extraterritoriality in International Law, Cheltenham, UK and Northampton, MA, USA: Elgar 2022, 2023. Besson, S. and A.-L. Graf-Brugère (2014), ‘Le droit de vote des expatriés, le consensus européen et la marge d’appréciation des Etats – Un commentaire de l’arrêt Sitaropoulos et Giakoumopoulos c. Grèce’, Revue trimestrielle des droits de l’homme, 100, 937–58. Brems, E. (1996), ‘The margin of appreciation doctrine in the case-law of the European Court of Human Rights’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 56, 240–314. Brems, E. (2009), ‘Human rights: minimum and maximum perspectives’, Human Rights Law Review, 9 (3), 349–72. Brems, E. (2018), ‘Smart human rights integration’, in A. Brems and S. Ouald Chaib (eds), Fragmentation and Integration in Human Rights Law: Users’ Perspectives, Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, pp. 165–94. Buchanan, A. (2004), Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, Oxford: Oxford University Press. Buchanan, A. (2008), ‘Human rights and the legitimacy of the international order’, Legal Theory, 14 (1), 39–70. Buchanan, A. (2010a), ‘Social moral epistemology and the tasks of ethics’, in N.A. Davis, R. Keshen and J. McMahan (eds), Ethics and Humanity – Themes from the Philosophy of Jonathan Glover, Oxford: Oxford University Press, pp. 105–25. Buchanan, A. (2010b), ‘The egalitarianism of human rights’, Ethics, 120 (4), 679–710. Buchanan, A. (2011), ‘Reciprocal legitimation: Reframing the problem of international legitimacy’, Politics, Philosophy & Economics, 10 (1), 5–19. Buchanan, A. (2013), ‘Moral progress and human rights’, in C. Holder and D. Reidy (eds), Human Rights – The Hard Questions, Cambridge: Cambridge University Press, pp. 399–417.

Human rights as transnational constitutional law  343 Buchanan, A. (2019), ‘The reflexive social moral epistemology of human rights’, in M. Fricker, P.J. Graham, D. Henderson and N.L.J.J. Pedersen (eds), The Oxford Handbook of Social Epistemology, Oxford: Oxford University Press, pp. 284–92. Buchanan, A. and R. Powell (2008), ‘Constitutional democracy and the rule of international law: Are they compatible?’, Journal of Political Philosophy, 16 (3), 326–49. Burgorgue-Larsen, L. (2020), Les 3 Cours régionales des droits de l’homme in context. La justice qui n’allait pas de soi, Paris: Pedone. Cohen, J.L. (2008), ‘Rethinking human rights, democracy and sovereignty in the age of globalization’, Political Theory, 36 (4), 578–606. Dzehtsiarou, K. (2015), European Consensus and the Legitimacy of the European Court of Human Rights, Cambridge: Cambridge University Press. Engle Merry, S. (1988), ‘Legal pluralism’, Law and Society Review, 22 (5), 869–96. Engle Merry, S. (2015), ‘Firming up soft law: the impact of indicators on transnational human rights legal orders’, in T.C. Halliday and G. Shaffer (eds), Transnational Legal Orders, Cambridge: Cambridge University Press, pp. 374–99. Føllesdal, A. (2018), ‘Appreciating the margin of appreciation’, in A. Etinson (ed.), Human Rights: Moral or Political?, Oxford: Oxford University Press, pp. 269–94. Gardbaum, S. (2008), ‘Human rights as international constitutional rights’, European Journal of International Law, 19 (4), 749–68. Gerards, J. (2014), ‘The European Court of Human Rights and the national courts: giving shape to the notion of “shared responsibility”’, in J. Gerards and J. Fleuren (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-Law – A Comparative Analysis, Antwerp: Intersentia, pp. 13–94. Gibney, M. and W. Vandenhole (eds) (2014), Litigating Transnational Human Rights Obligations – Alternative Judgments, London: Routledge. Habermas, J. (2011), Zur Verfassung Europas – Ein Essay, Berlin: Suhrkamp. Halliday, T.C. and G. Shaffer (eds) (2015), Transnational Legal Orders, Cambridge: Cambridge University Press. Halmai, G. (2012), ‘The use of foreign law in constitutional interpretation’, in M. Rosenfeld and A. Sajo (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 1328–48. Hessler, K. (2005), ‘Resolving interpretive conflicts in international human rights law’, Journal of Political Philosophy, 13 (1), 29–52. Hirschl, R. (2014), Comparative Matters: The Renaissance of Comparative Constitutional Law, Oxford: Oxford University Press. Jackson, V.C. and M. Tushnet (2014), Comparative Constitutional Law, 3rd edn, St Paul, MN: Foundation Press. Jain, N. and Versteeg, M. (eds) (2023), The Oxford Handbook of Comparative Human Rights Law, Oxford: Oxford University Press, forthcoming. Jessup, P.C. (1956), Transnational Law, New Haven, CT: Yale University Press. Keck, M.E. and K. Sikkink (1998), Activists beyond Borders, Ithaca, NY: Cornell University Press. Klabbers, J., A. Peters and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford: Oxford University Press. Klug, H. (2005), ‘Transnational human rights: Exploring the persistence and globalization of human rights’, Annual Review of Law and Science, 1, 85–103. Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford: Oxford University Press. Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: On the relationship between constitutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge: Cambridge University Press, pp. 258–325. Kumm, M. (2012), ‘The moral point of constitutional pluralism: Defining the domain of legitimate institutional civil disobedience and conscientious objection’, in J. Dickson and P. Eleftheriadis (eds), Philosophical Foundations of European Union Law, Oxford: Oxford University Press, pp. 216–46.

344  Handbook on global constitutionalism Letsas, G. (2010), ‘Strasbourg’s interpretative ethic: Lessons for the international lawyer’, European Journal of International Law, 21 (3), 509–41. Letsas, G. (2018), ‘The margin of appreciation revisited: A response to Føllesdal’, in A. Etinson (ed.), Human Rights: Moral or Political?, Oxford: Oxford University Press, pp. 295–312. Martí, J.L. (2006), ‘The epistemic conception of deliberative democracy defended: Reasons, rightness and equal political autonomy’, in S. Besson and J.L. Martí (eds), Deliberative Democracy and Its Discontents, Aldershot: Ashgate, pp. 27–56. McCrudden, C. (2000), ‘Common law of human rights? Transnational judicial conversations on constitutional rights’, Oxford Journal of Legal Studies, 20 (4), 499–532. McCrudden, C. (2007), ‘Judicial comparativism and human rights’, in E. Orücü and D. Nelken (eds), Comparative Law: A Handbook, Oxford: Hart, pp. 371–98. McCrudden, C. (2013), ‘Using comparative reasoning in human rights adjudication: The Court of Justice of the European Union and the European Court of Human Rights compared’, Cambridge Yearbook of European Legal Studies, 15, 383–415. McCrudden, C. (2014), ‘The pluralism of human rights adjudication’, in L. Lazarus, C. McCrudden and N. Bowles (eds), Reasoning Rights: Comparative Judicial Engagement, Oxford: Hart, pp. 3–27. McCrudden, C. (2015), ‘Why do national court judges refer to human rights treaties? A comparative international law analysis of CEDAW’, American Journal of International Law, 17 (3), 534–50. McCrudden, C. (2018), ‘Comparative international law and human rights: A value-added approach’, in A. Roberts, P.B. Stephan, P.-H. Verdier and M. Versteeg (eds), Comparative International Law, Oxford: Oxford University Press, pp. 439–58. Michaels, R. (2014), ‘What is non-state law? A primer’, in M.A. Helfand (ed.), Negotiating State and Non-State Law – the Challenge of Global and Local Legal Pluralism, Cambridge: Cambridge University Press, pp. 41–58. Muir Watt, H. (2011), ‘Private international law beyond the schism’, Transnational Legal Theory, 2 (3), 347–427. Neuman, G.L. (2003), ‘Human rights and constitutional rights: Harmony and dissonance’, Stanford Law Review, 55 (5), 1863–900. Neuman, G.L. (2008), ‘Import, export, and regional consent in the Inter-American Court of Human Rights’, European Journal of International Law, 19 (1), 101–23. Scott, C. (2009), ‘Transnational law as proto-concept: Three conceptions’, German Law Journal, 10 (7), 859–76. Shaffer, G. (2016), ‘Theorizing transnational legal ordering’, Annual Review of Law and Social Science, 12 (October), 231–53. Shany, Y. (2021), ‘Can Strasbourg be replicated at a global level? A view from Geneva’, in H. P. Aust, and E. Demir-Gürsel (eds), The European Court of Human Rights – Current Challenges in Historical and Comparative Perspective, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 71–89. Skogly, S. (2021), ‘Global human rights obligations’, in M. Gibney, G.E. Türkelli, M. Krajewski and W. Vandenhole (eds), The Routledge Handbook on Extraterritorial Human Rights Obligations, London: Routledge, pp. 25–38. Skogly, S.I. and M. Gibney (2002), ‘Transnational human rights obligations’, Human Rights Quarterly, 24 (3), 781–98. Spano, R. (2014), ‘Universality or diversity of human rights? Strasbourg in the age of subsidiarity’, Human Rights Law Review, 14 (3), 487–502. Teubner, G. (1996), ‘Global Bukowina: Legal pluralism in the world society’, in G. Teuber (ed.), Global Law without a State, London: Dartmouth, pp. 3–28. Twining, W. (2009), General Jurisprudence: Understanding Law from a Global Perspective, Cambridge: Cambridge University Press. Vandenhole, W. (2012), ‘Emerging normative frameworks on transnational human rights obligations’, EUI Working Papers No. RSCAS 2012/17, European University Institute, Florence. Vandenhole, W. (2015), ‘Obligations and responsibility in a plural and diverse duty-bearer human rights regime’, in W. Vandenhole (ed.), Challenging Territoriality in Human Rights Law: Building Blocks for a Plural and Diverse Duty-Bearer Regime, London: Routledge, pp. 115–35. Waldron, J. (2005), ‘Foreign law and the modern ius gentium’, Harvard Law Review, 119 (1), 129–47.

Human rights as transnational constitutional law  345 Waldron, J. (2011), ‘Rights and the citation of foreign law’, in T. Campbell, K.D. Ewing and A. Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays, Oxford: Oxford University Press, pp. 410–27. Waldron, J. (2012), ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts, New Haven, CT and London: Yale University Press. Waldron, J. (2016), ‘Human Rights: Universalism or the Integrity of a Common Enterprise?’, NYU School of Law, Public Law Research Paper No. 16–48. Wiener, A., A. Lang, J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global constitutionalism: Human rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–15. Wildhaber, L., A. Hjartarson and S. Donnelly (2013), ‘No consensus on consensus’, Human Rights Law Journal, 33 (7), 248–63. Ziemele, I. (2012), ‘Customary international law in the case law of the European Court of Human Rights’, in L. Lijnzaad and Council of Europe (eds), The Judge and International Custom, Strasbourg: Editions du Conseil de l’Europe, pp. 75–83. Zoethout, C.M. (2015), ‘The European Court of Human Rights and transnational judicial dialogue – references to foreign law and the quest for justification’, Vienna Journal on International Constitutional Law / ICL Journal, 9 (3), 398–416. Zumbansen, P. (2005), ‘Beyond territoriality: The case of transnational human rights litigation’, Research Paper No. 258, Osgoode Hall Law School, York University, accessed 2 May 2017 at http://​ digitalcommons​.osgoode​.yorku​.ca/​all​_papers/​258. Zumbansen, P. (2010), ‘Transnational legal pluralism’, Transnational Legal Theory, 1 (2), 141–89. Zumbansen, P. (2013), ‘Why global law is transnational’, Transnational Legal Theory, 4 (4), 463–75. Zumbansen, P. (2015), ‘Theorizing as activity: Transnational legal theory in context’, in U. Baxi, C. McCrudden and A. Paliwala (eds), Law’s Ethical, Global and Theoretical Contexts – Essays in Honour of William Twining, Cambridge: Cambridge University Press, pp. 280–302.

24. Proportionality as a global constitutional principle Anne Peters1

INTRODUCTION This chapter sets out to show that the principle of proportionality forms part of global constitutional law (and thus pertains to the reservoir of global constitutionalism as an intellectual framework). By global constitutional law, I understand the sum of especially important international and domestic legal norms that define ordering principles, institutions and procedures in relation to fact patterns and problems that affect more than a single state. Global constitutional law consists, ‘horizontally’, of similar legal norms in numerous domestic legal orders and, ‘vertically’, of a combination or interplay of international legal norms with globalized domestic constitutional legal norms (Peters 2007, pp. 251–308). Overall, global constitutional law constitutes a multilevel legal structure or legal network with horizontal and vertical connecting norms and partially overarching or overlapping procedures, one of the purposes of which is to provide mechanisms for interaction. Usually, it is the ‘horizontal’ migration of the proportionality test as a method of review from one state constitution to another which is regularly cited as the prime factor and manifestation of the globalization (or transnationalization) of domestic constitutions. However, this standard account perhaps underrates the persisting differences, and hybridization of proportionality scrutiny, especially when adjudicating constitutional rights, in various states.2 Another and maybe more convincing reason for classifying proportionality as a global constitutional principle is that it fulfils typical constitutional functions in international law and in the interplay between international and domestic law. Before analysing these constitutional functions, the evolution of the concept in domestic and international law will be briefly recapitulated.

DEFINITION, GENESIS AND SPREAD OF THE PRINCIPLE OF PROPORTIONALITY Proportionality in the broadest sense defines an appropriate relationship between different things in terms of size, number and type. Disproportionality is thus a ‘wrong’ relationship. One might attempt to distinguish the legal concept of proportionality from balancing,3 from necessity (for example, in Article 25 of the International Law Commission’s – ILC’s – Norms on State Responsibility, in Article 51 of the UN Charter, and in international humanitarian 3 1 2

This chapter builds on my ‘Verhältnismäßigkeit als globales Verfassungsprinzip’ (Peters 2016). See, for a comparative and empirical analysis, Kremnitzer et al, 2020. Fundamentally and with a critical view of US constitutional law, see Aleinikoff (1986–87).

346

Proportionality as a global constitutional principle  347 law) and, finally, from the principle of reasonableness.4 Such distinctions are not easy and also not necessary for global constitutionalism, because the concepts overlap in international law.5 A more specific proportionality test has been developed in the human rights context. This test contains several prongs: legitimate objective, suitability, necessity, and balancing. It is often called ‘proportionality proper’, or ‘proportionality in a narrow sense’. This chapter seeks to map and classify proportionality in a broader sense. The ‘invention’ of proportionality as a legal idea is usually ascribed to the Prussian jurist Carl Gottlieb Svarez, the spiritual father of the General State Laws for the Prussian States of 1794.6 It has been operationalized by the Higher Administrative Court of Prussia in its Kreuzberg-judgments of 1880 and 1882.7 A less well-known domestic strand of proto-proportionality reasoning is the US-American Supreme Court’s nineteenth-century case law on the dormant commerce clause8 which foreshadows the European Court of Justice’s (ECJ’s) case law on the admissibility of restrictions to the free movement of goods in the common market (Mathews and Stone Sweet 2011). The principle of proportionality has meanwhile been enshrined in numerous constitutions around the world.9 Not only can it be found in all Central and Eastern European constitutional orders,10 but also in the constitution of Tunisia,11 the constitutions of South Africa and Israel, of Latin American countries, Australia, New Zealand, and several Asian countries and territories such as Hong Kong, South Korea and India. Where proportionality is not referred to in the text of a constitution itself, it has been often elaborated as a judge-made principle. The migration of the principle of proportionality from one constitution to another often progressed through the vehicle of international law. For instance, the principle migrated from German law to European Union law and to the European Convention on Human Rights 4 See, for example, the ICSID, Feldman Karpa (Marvin Roy) v United Mexican States (Feldman v Mexico), ICSID Case No. ARB(AF)/99/1, Decision on the Merits, 16 December 2002, para. 129. For the law of the sea, see the International Tribunal for the Law of the Sea (ITLOS), Saiga (n. 32 below). 5 For an equation of the principle of ‘equitable and reasonable share of natural resources’ (in this context, water from the Danube) with proportionality (‘proportionality which is required by international law’), see the ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports 1997, p. 7 et seq., para. 85. 6 General State Laws for the Prussian States (1 June 1794): ‘Chapter 17. On the rights and duties of the State for the special protection of its subjects; Section 1: On jurisdiction; Subsection 2: Police powers; s. 10: The police are the necessary institution for preserving the public peace, security, and order, and for averting imminent danger to the public or individual members thereof’, s. 10 II 17 of the General State Laws for the Prussian States, 1 June 1794 (translation mine), accessed 26 October 2022 at http://​opinioiuris​.de/​quelle/​1623​#Erster​_Abschnitt​.​_Von​_der​_Gerichtsbarkeit; printed in Hattenhauer and Bernert (1996). 7 Kreuzberg-judgments of the Prussian Oberverwaltungsgericht (OVG), of 10 June 1880 and 14 June 1882 (reprinted 1985 in Deutsches Verwaltungsblatt, 100 (4), 216–26), on the unlawfulness of a Berlin police ordinance. 8 Ranging from Anderson v Dunn, 19 U.S. (6 Wheat.) 204, 230–1 (1821) to Reid v Colorado, 187 U.S. 137, 151 (1902). 9 For a reception chart, see Barak (2012, p. 182). For comparative constitutional literature and constitutional theory, see Möller (2012); Bomhoff (2013); Cohen-Eliya and Porat (2013); Jackson and Tushnet (2018); Pou-Giménez et al (2022). 10 See the explicit provisions in Article 49 of the Constitution of Romania of 21 November 1991; Article 54 of the Constitution of Moldova of 29 July 1994; Article 17 of the Constitution of the Republic of Albania of 21 October 1998. 11 Article 49 of the Constitution of Tunisia of 26 January 2013.

348  Handbook on global constitutionalism (ECHR), and from there backflow has occurred and continues to occur into other national legal orders. Probably the best-known example is the transposition of the principle via the ECHR to the United Kingdom,12 where it became part of British constitutional law through the Human Rights Act 1998,13 displacing the old English reasonableness test (the Wednesbury principle).14

PROPORTIONALITY IN INTERNATIONAL LAW The principle of proportionality is mentioned in the treaty language of many areas of international law and has been spelled out in the case law of international courts and other bodies. In approximate historical sequence, the principle emerged in the following areas of international law: the law of countermeasures (sanctions), the law of international responsibility, the law of self-defence, the law of natural resources, the law of armed conflict, international and regional human rights protection, world trade law (World Trade Organization (WTO) and North American Free Trade Agreement), and international investment protection law. The law of countermeasures is now more or less standardized in the ILC Articles of 2001.15 According to ILC Article 51 on countermeasures, these ‘must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.’ In WTO law, the countermeasures are specially set out, and here again the principle of proportionality applies, sometimes in a form that deviates from general international customary law (Mitchell 2006, pp. 985–1008). According to Article 22(4) and (7) of the WTO Dispute Settlement Understanding (1994), the level of the suspension of treaty obligations must ‘be equivalent’ to the level of the treaty violation.16 Article 4.10 of the Agreement on Subsidies and Countervailing Measures refers to ‘appropriate countermeasures’ authorized by the Dispute Settlement Body (DSB) of the WTO; and under Article 7.10, in the event of arbitration, ‘the arbitrator shall determine whether the countermeasures are commensurate with the degree and nature of the adverse effects determined to exist’.17 With respect to the content of state responsibility (that is, the consequences imposed on the lawbreaker), both restitution (ILC Article 35(b)18) and satisfaction (ILC Article 3719) can be demanded from the responsible state only if this is proportionate.

12 See ECtHR, Handyside v United Kingdom, 7 December 1976, No. 5493/72, paras 46–9 (esp. para. 49). 13 1998 c 42, Royal assent 9 November 1998, entry into force 2 October 2000. 14 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1947] EWCA Civ 1 (10 November 1947). 15 The old legal institution was reprisal, including armed reprisal. 16 See WTO, Decision by the arbitrators, EC − Regime for the importation, sale and distribution of bananas, Recourse to arbitration by the EC under Article 22.6 of the DSU, WT/DS27/ARB, 9 April 1999, para. 6.16 with reference to ‘the general international law principle of proportionality of countermeasures’. 17 The term ‘commensurate’ has been interpreted as a requirement of ‘proportionality’ (WTO, Decision of the Arbitrator, US – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), Recourse to Article 22.6 DSU by the United States, 13 October 2020, WT/DS353/ARB, para. 6.68. 18 Article 35: ‘to the extent that restitution: … does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’. 19 Article 37(3): ‘Satisfaction shall not be out of proportion to the injury.’

Proportionality as a global constitutional principle  349 Every limitation of the exercise of fundamental rights under the ECHR must be proportionate.20 Regardless of the explicit provision of limits on fundamental rights (such as in the respective paragraphs 2 of Articles 8 to 11 ECHR: ‘necessary in a democratic society’), the case law has elaborated this requirement with respect to all the rights under the ECHR, for example, for Article 6, and also for the prohibition of discrimination under Article 14. Any derogation in time of emergency is, according to Article 15(1) ECHR, only permitted where strictly proportionate: ‘to the extent strictly required by the exigencies of the situation’. Also within the scope of application of the International Covenant on Civil and Political Rights (ICCPR), the principle of proportionality must be observed when limiting the rights under the covenant.21 In investment protection law, proportionality plays a constitutional role in three contexts in particular (Kingsbury and Schill 2010, pp. 75–104).22 First, it is a factor for distinguishing between a legitimate limitation of property rights and compensable expropriation. Secondly, arbitral tribunals resort to the principle of proportionality when determining whether the host state has respected the fair and equitable treatment standards, taking account of the legitimate expectations of the investor.23 Thirdly, proportionality is relevant when evaluating the non-precluded measures clauses in bilateral investment treaties (BITs).24 In some newer investment protection treaties, the principle of proportionality is set out explicitly,25 and it has been applied by tribunals as a general benchmark in various constellations.26

20 See for an elaborate argument against the use of the proportionality analysis in human rights law Urbina (2017). 21 See the United Nations Human Rights Committee (UNHRC), General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, CCPR/C/21/ Rev.1/Add. 13, para. 6. 22 But see for the argument that proportionality is not and should not become part and parcel of international investment law Vadi (2018), esp. at pp. 270–1; normative concerns against proportionality in investment law also by Ortino (2017); Schneiderman (2018). 23 Saluka Investments BV v Czech Republic (Saluka v Czech Republic), the United Nations Commission on International Trade Law (UNCITRAL), Partial Award, 17 March 2006, para. 306; EDF (Services) Limited v Romania, ICSID Case No. ARB/05/13, Award, 8 October 2009, para. 293; Glamis Gold Ltd. v United States of America (Glamis Gold v US), UNCITRAL (NAFTA), Award, 8 June 2009, para. 803; Suez, Sociedad General de Aguas de Barcelona S.A., and InterAgua Servicios Integrales del Agua S.A. v Argentina (InterAgua v Argentina), ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 216; Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. and The Argentine Republic and AWG Group v The Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010, paras 236–7; ICSID, Charanne and Construction Investments v Spain, SCC Case No. V 062/2012, Final Award, 21 January 2016, paras 513–17; ICSID, Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v Italian Republic, ICSID Case No. ARB/14/3, Award, 27 December 2016, para. 518; ICSID, Eskosol S.p.A. in liquidazione v Italian Republic, ICSID Case No. ARB/15/50, Award, 4 September 2020, para. 410. 24 ICSID, Continental Casualty v Argentine Republic, ICSID Case No. ARB/03/09, Award, 5 September 2008, paras 189 et seq. on Article XI BIT United States–Argentina. 25 See, e.g., Articles IV and VI(2)(c) of the Agreement UK–Colombia, 17 March 2010; Annex 2 Sect. 3 c of the ASEAN, Hong Kong, China SAR Investment Agreement of 12 November 2017; Art. 35.1 of the Cameroon–UK Economic Partnership Agreement, 9 March 2021; numerous clauses in the EU–UK Trade and Cooperation Agreement of 29 April 2021; Article 7.1 c of the Investment Agreement between Hungary–UAE of 15 July 2021. 26 ICSID, Anglo-Adriatic Group Limited v Republic of Albania, ICSID Case No. ARB/17/6, 7 February 2019, paras 285–8; ICSID, Grenada Private Power Limited and WRB Enterprises, Inc. v

350  Handbook on global constitutionalism Finally, the principle of proportionality is strongly developed in European Union (EU) law (Emiliou 1999; Emmerich Fritsche 2000). First, the principle must be observed when determining the powers of the EU (vis-à-vis the member states) (Article 5(4) Treaty on European Union (TEU) and the Protocol on Subsidiarity and Proportionality of 2007). Secondly, the principle serves as a ‘limit-limit’ when restricting the exercise of EU fundamental rights and freedoms.27 An example of the application of the principle of proportionality in the protection of species and resources is the Whaling judgment of the International Court of Justice (ICJ) in the case brought by Australia against Japan on so-called ‘scientific’ whaling conducted by Japan.28 According to the International Convention for the Regulation of Whaling (ICRW) of 1946, states parties may grant their nationals a ‘special permit’ for whaling ‘for purposes of scientific research’.29 None of the whaling moratoriums concluded under the ICRW regime in recent years apply to scientific whaling, that is, it has remained permitted. Australia sued Japan before the ICJ, arguing that the Japanese activities in reality were not scientific, but rather commercial hunts and therefore not covered by the treaty provision in question. The ICJ interpreted the clause ‘for purposes of scientific research’ in Article VIII and found that the elements of the design and implementation of the Japanese research programme must be ‘reasonable in relation to’ the scientific purposes the state had set out itself.30 The ICJ concluded that the Japanese programme JARPA II in reality did not exist for scientific purposes, because it lacked a research objective, a method and especially any transparency with which a third-party might have been able to evaluate its scientific nature. The ICJ thus found that Japan was in breach of the ICRW. In terms of the categories of the traditional theory of the sources of international law, the requirement of proportionality has in part been set out as a treaty obligation. In that respect, ‘proportionality’ cannot offer a substantive standard of conduct, but rather it represents a technique or method to determine such a measure of conduct in the light of the specific circumstances (Cannizzaro 2000, p. 472). Already today, this technique possibly constitutes a principle of customary international law across all areas of the law. It is also plausible to classify proportionality as a general principle of law as referred to in Article 38(2)(c) of the ICJ Statute. Even though proportionality of the first, horizontal, version (more on this below) crystallized as a technique in international law governing countermeasures as well as for the use of land and resources – independently of and even prior to the worldwide dissemination of the liberal domestic administrative and constitutional principles (Cannizzaro 2000, p. 482) – its diagonal version in particular did originate in domestic constitutional and administrative law. The principle overall has, meanwhile, been disseminated globally in all of its versions; in the old-fashioned words of the ICJ statute, it has been recognized by all ‘civilized nations’.

Grenada, ICSID Case No. ARB/17/13, 19 March 2020, para. 149; ICSID, Alejandro Diego Díaz Gaspar v Costa Rica, ICSID Case No. ARB/19/13, 29 June 2022, para. 261. 27 See, fundamentally, ECJ, Internationale Handelsgesellschaft, Case 11/70, 1970, 1125 et seq.; now Article 52(1) of the EU Charter of Fundamental Rights. 28 ICJ, Whaling in the Antarctic (Australia v Japan: New Zealand Intervening), 31 March 2014. 29 Article VIII(1) ICRW of 2 December 1946, UNTS 161, No. 72. 30 ICJ, Whaling (n. 28 above), paras 67, 88, 97, 127 et seq.

Proportionality as a global constitutional principle  351

THREE VERSIONS OF THE PRINCIPLE OF PROPORTIONALITY This cursory overview of the different areas of international law has shown that three different versions of the principle of proportionality exist in international law. The first version – which I refer to as the horizontal version between states – exists in areas of the law such as countermeasures, including self-defence. The principle here concerns the relationship between the action (breach of international law) of a state and the permitted reaction of another state, that is, it applies only between states. The second version I refer to as the diagonal version, pertaining to individuals. Here, the relationship is different, namely, between a national public interest and the particular interests of individuals (in human rights protection as well as international humanitarian law) or investors. The third version refers to the relationship between a global public interest, that is, in free trade, and particular interests of states (and the economic interests behind them, for example, in WTO law). I call this the vertical version. In these three versions, which refer to different relationships, the principle of proportionality plays a constitutional role, but not necessarily the same role. The Horizontal Version The horizontal version of the principle of proportionality refers to the situation of conflicting interests of states. Often, these interests relate to the exploitation and the use of resources, for example, in the law of the sea, the law of land use, and the law of fisheries or water courses (Cannizzaro 2000, pt 1, chs 2, 3). The ‘archaic’ nature of this version can be seen especially in the area of countermeasures, and with regard to self-defence. In this regard, already the Caroline case (1841/42) had established that self-defence must be limited to cases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation’ (Mr. Webster, US Secretary of State, to Lord Ashburton, British plen., 6 August 1842, reprinted in Moore 1906, p. 412). Here, as nowadays under Article 51 of the UN Charter, the requirement of proportionality applies to the relationship between action and reaction: the preceding action consists of a breach of international law, such as the breach of a treaty, or even an armed attack. The injured state is entitled to react, with peaceful sanctions or – in the case of an armed attack – with military self-defence. However, in all cases, the reaction must be proportionate (O’Meara, 2021).31 In the relationship between states, the preceding action may also consist of a (claimed) violation of domestic law. For instance, the International Tribunal for the Law of the Sea (ITLOS) applied the principle of proportionality to limit the use of armed force when apprehending a foreign ship: ‘it must not go beyond what is reasonable and necessary in

31 On countermeasures, see ICJ, Gabčíkovo-Nagymaros Project (n. 5 above), para. 85. On the requirement of ‘necessity and proportionality’ of self-defence under international law, see ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits), ICJ Reports 1986, p. 14 et seq., paras 176, 194, 237; ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996), ICJ Reports 1996, p. 226 et seq., para. 41; ICJ, Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p. 161 et seq., paras 43, 51, 73–8; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p. 168 et seq., para. 147.

352  Handbook on global constitutionalism the circumstances’.32 On ‘considerations of humanity’, the principle was derived as a general principle of international law, which the tribunal may apply in accordance with Article 293 United Nations Convention on the Law of the Sea (UNCLOS). The principle limited the use of force against a foreign ship and its crew by the Republic of Guinea for the purpose of realizing Guinea’s state interest in the enforcement of its domestic laws against contraband, fraud and tax evasion. The ITLOS held that the use of armed force was ‘excessive’ and therefore in breach of international law. The rationale of the principle of proportionality in this context is to prevent escalations. As Thomas Franck writes, the central function of proportionality (I would add: in the horizontal, ‘archaic’ version) is ‘to keep countermeasures from spiraling out of control’ (Franck 2008, p. 763). This function becomes understandable if we keep the overall structure of international law in mind. In this paradigm, the principle of proportionality applies within a horizontal legal order, that is, an order in which the actors or legal persons – especially states – face each other as sovereign equals on a level playing field without a superordinate authority. The subjects of international law (especially states) may and should react to the breaches of international law on the part of others by helping themselves via countermeasures. The effectiveness of this legal order relies on decentralized enforcement; there is no monopoly on the use of force, nor is there a central authority and certainly not a global state. From this perspective, the states at the international level are comparable to individuals or families before the emergence of the modern state with a monopoly on the use of force. In a sphere without a monopoly on the use of force – which (in simplified terms) was introduced in Europe only with the Perpetual Peace of 1495 – feuds (in the sense of self-help) had to be tolerated. De-escalation in such a system is a special constitutional function; it is constitutive (or constitutionally relevant) because it is fundamental for the preservation of the entire order. The Diagonal Version The second version of the principle of proportionality in international law refers to the relationship between the national public interest and the particular interests of individuals. In human rights law, for instance, the national public interest of the state is realized through measures by the state to ensure security and order (such as in counterterrorism). In the branch of investment protection law, the national public interest is, for example, the interest of the investors’ host state in strict environment regulation. In international humanitarian law, it is the interest of a party to an armed conflict in attaining a military advantage. The individuals affected by state measures may or may not be nationals of the acting state. Human rights protection applies as soon as the individuals are subject to the jurisdiction of the state, also extraterritorially. In international humanitarian law, persons belonging to the other party to the armed conflict are the ones typically affected, that is, nationals of the opponent state or insurgents. In investment protection law, the investors affected by the measures of the host state are precisely not nationals of the host state – this is even a precondition for application of the International Centre for the Settlement of Investment Disputes (ICSID) mechanism.33

ITLOS, M/V Saiga (No. 2) (Saint Vincent and the Grenadines v Guinea), ITLOS Case No. 2, Judgment of 1 July 1999, paras 155–9, quote at para. 155. 33 See Article 25 ICSID Convention. 32

Proportionality as a global constitutional principle  353 This constellation – the tension between the national public interest and individual interests – is similar to that with which we are familiar from domestic constitutional law. There is a slight difference, however: the individual interest is also protected by international law (sometimes on top of a constitutional guarantee which might also safeguard that individual interest), and there is an international legal regime – in some cases coupled with enforcement institutions – to guarantee that the interests of the individuals (including investors) are safeguarded. This individual protective orientation has not always been inherent to the regimes in question. For instance, the protection of individuals in international humanitarian law was historically rooted in the states’ interest not to lose their own nationals; the same was true of the law of aliens, which was the precursor to human rights protection and investment protection law. The international guarantee shows, in any event, that respect for the particular interests protected here – that is, interests of civilians and investors (irrespective of whether the protection takes the form of legal duties incumbent on the states or whether the treaty creates rights of the individuals themselves34) – is at the same time seen as being in the global public interest (Peter 2012). Securing particular interests is also a public interest, namely that of the international community. In that sense, what is at issue here is the tension between the particular interests of the nation-state and the global public interest. The Vertical Version Finally, and more recently, a third international legal version of the principle of proportionality has become prominent, which I would like to refer to as the vertical version. The main field of application has been WTO law.35 Here, the principle of proportionality plays a role for tying back and limiting the use of derogations from the General Agreement on Tariffs and Trade (GATT) liberalization obligations, especially if a WTO member tries to justify this derogation with reference to the general exceptions under Article XX GATT, and similarly under Article 2(1) and Article 5(6) of the Sanitary and Phytosanitary (SPS) Agreement as well as Article 2(2) of the Technical Barriers to Trade (TBT) Agreement. According to Article XX GATT, for instance, subparagraph (a) allows members to protect public morals, and subparagraph (b) allows them to protect human, animal, or plant life or health. Subparagraph (d) permits measures to secure compliance with laws or regulations (protection of patents, customs enforcement, and so on). These domestic (and potentially trade restrictive) measures to protect the aforementioned legal interests must always be ‘necessary to …’. Under Article XX(g), a state measure must ‘relate to’ an environmental policy pursued by that state.36 According to WTO case law, the review of the application of these exceptions (including the requirements set out in the chapeau of Article XX GATT37) includes a ‘process of “weighing and balancing” a series of factors, including the importance of the objective, the contribution of the measure

34 In international humanitarian law, for instance, it is disputed whether the protected persons are merely beneficiaries (objects of protection) of international humanitarian law. 35 See Desmedt (2001, pp. 441–80). 36 See Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp Products, 12 October 1998, WT/DS58/AB/R, para. 136: ‘substantial relationship’, ‘close and genuine relationship of ends and means’. 37 For a review of the proportionality of the national law complained of, including application of the chapeau, see Appellate Body, Shrimp (n. 36 above) para. 141.

354  Handbook on global constitutionalism to that objective, and the trade-restrictiveness of the measure’.38 In the Seal Products case (on Article XX(a) GATT), the Panel and the Appellate Body undertook a careful review of whether there were ‘reasonably available alternative means’ to the import ban on seal products. In this connection they specifically examined the feasibility of the possible alternative means (labelling requirements and the like) and took account of the prohibitively high costs, which ultimately rendered the alternatives unfeasible.39 The application of the principle of proportionality or the technique of balancing in turn relies on the assumption that there is a global public interest at stake, with which particular interests (here, of individual states) are in tension. In WTO law, the global public interest is that of free trade, based on the assumption that global trade leads to a global increase in welfare (in accordance with David Ricardo’s theory of comparative advantage). This is expressed in the preamble of the WTO Agreement, which defines the goal of the WTO as the reduction of tariffs and other barriers to trade for the ‘mutual advantage’ of the WTO members. The focus of this regime on general welfare exists independently of the question whether the WTO treaty obligations are interpreted as collective obligations (which are wholly and indivisibly owed to all other members) or as a bundle of bilateral obligations (on the latter classification see Pauwelyn 2003, pp. 907–51). The global public interest in free trade (which in turn is ultimately meant to serve all members and their populations) is in tension with the particular interests of the states and their ‘right to regulate’.40 The national interest may, however, also be based on international law. Accordingly, when justifying derogations from WTO obligations or when legitimizing the limitation of investor rights guaranteed under international law, states sometimes invoke not only domestic, but also international legal provisions.41

WTO Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014, para. 5.169. See, fundamentally, WTO Appellate Body, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, 11 December 2000, paras 164–5 (on Article III(4) GATT)). See also WTO Appellate Body, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, 7 April 2005, para. 306 (on ‘necessity’ as referred to in Article XIV GATS); WTO Appellate Body, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, 3 December 2007, para. 182 (on Article XX(b) GATT). 39 See WTO Appellate Body, Seal Products (n. 38 above), paras 5.260–5.278. 40 Ibid. esp. paras 5.124–5.127. 41 See, for example, NAFTA Chapter 11 Arbitration, Glamis Gold v United States of America, Counter-Memorial of Respondent United States of America of 19 September 2006, pp. 33–5: The responding state justified its requirement that after mining activities near the sacred sites of Native Americans are concluded, the sites must be refilled, with reference to the principles of the United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Convention, which limit the rights of investors under NAFTA. The responding state referred to ‘principles of cultural preservation … that reflect the “policy” of the international community’ (p. 35). In the Biotechnology case, the European Union (then Community) justified its derogation especially from the SPS Agreement with reference to the Cartagena Protocol on Biosafety. WTO, EC – Measures Affecting the Approval and Marketing of Biotech Products (29 September 2006), Panel Reports, WT/DS 291–293/R, for example at para. 4.358. 38

Proportionality as a global constitutional principle  355

COMPARISON Comparing the three versions of the principle of proportionality, it becomes apparent that the question of what has to be balanced against what, or reconciled with what, must be answered in very different ways: in the horizontal, archaic version (1), the relationship is between measure and countermeasure; in the diagonal version (2), the relationship is between national interest and individual interest; and in the vertical version (3), the relationship is between the global public interest and the particular interest of the state. This division heavily simplifies the issue, because – as some of the examples show – the particular interests in question are underlaid with universal justifications. For that reason, their common structure can be emphasized: in all three versions, the proportionality test is a technique to structure, reveal and thus rationalize a reconciliation of the competing interests, positions, or rights to some extent, and in that way to make the reconciliation process – which always requires a value judgement – subject to verification and criticism.

A GLOBAL CONSTITUTIONAL PRINCIPLE It is submitted that the principle of proportionality is something other than merely an ordinary principle of international law.42 Rather, it belongs to the subset of global constitutional law as defined at the outset.43 Four reasons, which mainly relate to the principle’s functions, speak in favour of such a classification. The first reason is that the principle of proportionality is important from a substantive perspective. The distinguishing mark of constitutional law in a substantive sense (that is, independently of possible formal characteristics such as higher rank, special amendment procedures, and so on) is its importance in terms of content. Constitutional law encompasses the important norms of a community. These norms must, as an English constitutional textbook puts it, have ‘something fundamental’.44 This is true of the principle of proportionality: in all three versions, it plays – as we have seen – fundamental, important roles for the branches of law in question. The second argument for the constitutional quality of the principle of proportionality is that the application of the principle changes the character of the international legal order in a deep way by allowing accommodations to new situations, as Enzo Cannizzaro has pointed out (Cannizzaro 2014, pp. 332–3). In that way, international law can take account of varying constellations of interests and changing valuations. This is a better match for a pluralistic and dynamic world. The mechanism is fundamental, and it justifies classification of the principle of proportionality as a constitutional principle. A follow-up question is who is entitled to

See for proportionality in the broader sense of weighing and balancing as a general principle of law: Cottier et al (2017). But see for the argument that proportionality is no principle of international law at all Stelzer (2018). 43 Cf. Crawford (2015, para. 26): Finding ‘the emergence and institutionalization of the principle of proportionality demonstrative of an emergent global constitutionalism … an overarching principle, diffused into a considerable number of international and domestic legal systems’. 44 Turpin and Tomkins (2011, p. 6). The British constitution is not ranked higher than legislation and is not codified in a single document, so that constitutional law (similarly to international constitutional law) can be defined only according to substantive features. 42

356  Handbook on global constitutionalism realization of these adjustments and gradual changes of norms. I consider this at the end of this chapter. The third argument for classifying the principle of proportionality as a constitutional principle derives from the fact that especially in regard to the WTO dispute settlement mechanism that has existed since 1994, and which is similar to an arbitral tribunal, the ‘balancing’ undertaken by the Appellate Body is a ‘constitutional technique’ that generally is seen as a manifestation of the constitutionalization of that regime (Cass 2001, pp. 39–77). In the WTO context, the balancing must often be undertaken, on the one hand, between legitimate regulatory interests of the members, which may have the effect of barriers to trade, and on the other hand, the treaty obligation of free trade. Why should balancing be considered a constitutional technique? It is a constitutional technique because the reconciliation of the tension between particular interests and the public interest (or the general welfare, the bonum commune) is typically a responsibility of the constitution and its institutions.45

THE CONSTITUTIONAL FUNCTION OF CREATING UNITY Probably the most important characteristic and mode of action of the principle of proportionality, on the basis of which it deserves the high-grade label of a constitutional principle, is its quality as an overarching structural principle. It reduces fragmentation and thus plays the constitutional role of creating unity (Rauber 2015). We have seen that the principle of proportionality is established in nearly all branches of international law. It has migrated from one branch of international law to another through the incorporation of case law from different branches of the law by specialized international courts and bodies. The investment arbitration tribunals, for instance, have relied on the principle of proportionality as developed by the European Court of Human Rights (ECtHR) when distinguishing between expropriation and legitimate regulation of property,46 on the case law of the ICJ when assessing the proportionality of countermeasures,47 and on the WTO case law on ‘necessity’ within the meaning of Article XX GATT when interpreting the exception clause in a BIT.48 The law of countermeasures has also been developed in a manner that transcends individual branches of the law. The proportionality of countermeasures is assessed by courts and other bodies in general international law, in investment protection law,49 and in world trade law50 45 Granted, judges engage in balancing in a variety of other legal contexts, too. However, in constitutional law, the prevalence of principles (as opposed to rules) leads judges more than anywhere else to seek to ‘optimize’ those principles and to try to reconcile them in the event of a conflict. 46 See ICSID, Continental Casualty (n. 24), n. 407 on p. 124; Tecnicas Medioambientales Tecmed SA v The United Mexican States (Tecmed v Mexico), ICSID Case No. ARB(AF)/00/2, Award, 29 May 2003, n. 143 on p. 47; Azurix Corporation v The Argentine Republic (Azurix v Argentina), ICSID Case No. ARB/01/12, Award, 14 July 2006, para. 311. 47 See ICSID, Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v United Mexican States (Archer Daniels v Mexico), ICSID Case No. ARB (AF)/04/5, Award, 21 November 2007, para. 126. 48 See ICSID, Continental Casualty (n. 24), paras 192–5. 49 See, for example, ICSID, Archer Daniels (n. 47 above), paras 152–60, applying the standard developed in ICJ judgments, Nicaragua (n. 31 above) and Gabčíkovo-Nagymaros (n. 5 above). 50 See, for example, WTO Appellate Body, United States – Definitive safeguard measures on imports of circular welded carbon quality line pipe from Korea, WTO DS 202/AB/R, 8 March 2002, para. 259 with n. 256, citing the ICJ judgments in Nicaragua and Gabčíkovo-Nagymaros.

Proportionality as a global constitutional principle  357 with reference to the same principles and in a dialogue among the (arbitral) tribunals and courts. If it were applied consistently (but not necessarily uniformly), the principle of proportionality could contribute to a concordance or harmonization of the individual branches of the law. A good example is the need and also the possibility of harmonizing the provisions of human rights protection with those of international humanitarian law in situations of armed conflict. Today, both types of norms are applied cumulatively in armed conflict.51 At issue is often the right to life of civilians. According to Article 6 ICCPR, civilians may not be deprived ‘arbitrarily’ of the right to life. In contrast, the ECHR requires a strict proportionality test: according to the wording of the ECHR, a deprivation of life must be ‘absolutely necessary’ to achieve (specific, specially enumerated) legitimate goals of the state.52 What does ‘arbitrary’ or ‘absolutely necessary’ mean in an armed conflict? If a human rights court has to decide whether the right to life or freedom of movement has been violated in armed conflict, as the ECtHR did with regard to war in Chechnya, Iraq, or Georgia,53 it may examine the facts only against the yardstick of the ECHR. However, it can and must interpret the ECHR in the light of international humanitarian law, following the principle of systemic interpretation (Article 31(3)(c) of the Vienna Convention on the Law of Treaties). When assessing whether the right to life of combatants has been violated, a court would then conclude that the deprivation of life was not arbitrary, because killing combatants (as opposed to civilians) is in principle permitted under international humanitarian law, and thus does not violate the right to life. The legal assessment of the killing of civilians is completely different. In this regard, international humanitarian law sets out a series of principles, the normative contents of which overlap: the principle of distinguishing between military and civilian objectives (Articles 48 and 51(4) AP I 1977), the prohibition of attacks directed at civilians (Article 51(2) AP I 1977), and the principle of ‘military necessity’. Moreover, the methods and means of warfare may not be chosen without limits (Article 35(1) AP I 1977). The causing of ‘unnecessary’ suffering (Article 35(2) AP I 1977) and ‘excessive attacks’ are prohibited (Article 51(5)(b) and Article 57(2)(a)(iii) AP I 1977). These are all formulations that include elements of a proportionality test.54 From the combination of all of these principles of the law of armed conflict, especially the principle of distinction in conjunction with the principle of military necessity, it follows that attacks may be directed only against military targets (combatants and objects). ‘Collateral damage’ to the civilian population, civilian objects, or the environment is allowed only if it is not ‘disproportionate’ to the anticipated concrete and direct military advantage.55 When performing this balancing test, the scale is not calibrated to zero, so to speak. It is tilted slightly 51 See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136 et seq., para. 106. The reference to international humanitarian law as ‘lex specialis’ does not mean exclusivity. 52 See, for example, ECtHR (Grand Chamber), Nachova v Bulgaria, No. 43577/98, 6 July 2005, para. 95. 53 Last ECtHR (Grand Chamber), Case of Georgia v Russia (II), 21 January 2021 (No. 38263/08), paras 92–95. 54 See for the specific difficulty of applying proportionality in cyber war Boylan, 2017. 55 See, for example, International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, Prosecutor v Galić, Judgment, IT-98-29-A, 30 November 2006, para. 190.

358  Handbook on global constitutionalism from the outset, at the expense of the attacker: the legal interest of the protection of civilians has a greater weight. To make up for interference with that interest, the military advantage must be huge. According to the law on the books, only a massive military advantage justifies (a certain level of) damage. In reality, however, the balancing is often to the disadvantage of the civilian population, not least of all owing to the factors of scope and uncertainty when answering questions of fact and when determining what should be considered an advantage or damage, and how the advantages and disadvantages should be measured and compared. If, after the fact, a court reviews the correctness of the balancing, that is, the ‘appropriateness’ of this relationship, the fair yardstick to be applied is that of ex ante assessment by a ‘reasonable military commander’. If a reasonable military commander could be expected to believe that a massive military advantage would be attained by an attack on a military object, with only isolated loss of civilian life, then the attack should be considered lawful. Conversely, disproportionate collateral damage may be an indication that attacks were deliberately directed against civilian objectives, thus violating the principle of distinction.56 This example shows how the principle of proportionality is applied as an overarching principle in the context of armed conflict (Newton and May, 2014; Cohen and Zlotogorski, 2021; Kreß and Lawless, 2021; Agi, 2022). In this way, the different branches of the law (here, international humanitarian law and human rights) are coordinated and harmonized, thus working against the fragmentation of international law. However, there is also a danger that the application of international humanitarian law might undermine the protection of human rights, such as in territories under military occupation (Gross 2007, pp. 16–19). This undermining of human rights protection might be countered by consistent application of the principle of proportionality, which does not have to be uniform but rather can take account of military necessity in a context-dependent way.

PROPORTIONALITY AND THE PROLIFERATION OF INTERNATIONAL COURTS AND TRIBUNALS AS CO-CONSTITUTIVE MARKERS OF CONSTITUTIONALIZATION In constitutional states, the task of adjusting and further developing law with the help of the principle of proportionality typically falls to the courts. The spread of the principle of proportionality to nearly all domestic legal orders has, as Alec Stone Sweet and Jud Mathews showed, substantially contributed to the ‘judicialization’ of these various legal systems, and has fomented the expansion of judicial power globally (Stone Sweet and Mathews, 2019). In contrast to national legal orders, the international legal system lacks a compulsory jurisdiction. It has been argued that for this reason alone, proportionality can never become a principle of international law (Krugmann 2004, pp. 124–5). The argument is that proportionality reasoning depends on various prior decisions: first, it must be decided to which types of questions it applies and to which not; second, the relevant factors entering the balance must be chosen; and third, they must be weighted. On all these points, no agreements exist in international law. Therefore, so the argument goes, proportionality can only become a principle of international law once states have agreed on the establishment of an institution which 56 See International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, Prosecutor v Galić, Judgement, IT-98-29-A, 30 November 2006, para. 133.

Proportionality as a global constitutional principle  359 enjoys the authority to issue ‘subjective’ balancing decisions which will be accepted by all (Krugmann 2004, p. 125). It is submitted that this argument both overstates the irrational character of the proportionality analysis and underrates the degree of judicialization of the current international legal order. In matters transcending the confines of the nation-states, important courts and arbitral systems have been established or were re-invigorated especially in the 1990s: the WTO DSB, ICSID, the International Criminal Court, and the ITLOS. The judicialization of conflict resolution beyond the nation-state is generally seen as a core characteristic of the constitutionalization of international law as a whole (Peters 2012, pp. 125–6), and it is welcomed by global constitutionalism. Here, as in the national realm, it seems as though the instalment of judges and arbiters has contributed to the rise of the judge-made proportionality analysis which then feeds back into an ever-greater boosting of those judges who develop and apply the test. From the perspective of global constitutionalism, this trend carries more opportunities than risks. The opportunity is a strengthening of the rule of law, which includes a modification of the uses of proportionality in international law. This modification stems from the fact that judicial or arbitral conflict resolution sits ill with the ‘unconstitutionalized’ mode of conflict resolution through self-help and countermeasures. Because both modes cannot function side by side, it is normally assumed that countermeasures (regardless of how proportionate they might be) are no longer permissible once a conflict resolution body (that is, a neutral third-party institution that decides by applying the law, with binding or advisory force) becomes active in the case.57 That is, the compliance mechanism of (bilateral) self-help and the compliance mechanism of juridical dispute resolution are mutually exclusive. If, first, we regard judicialization as a core characteristic of the constitutionalization of international law and, secondly, as a marginalization of the right to countermeasures, then it appears that constitutionalization would consist in the displacement of the horizontal, archaic principle of proportionality. This displacement is not tantamount to its complete replacement, however. A combination of the horizontal and vertical principles of proportionality within the same proceedings remains possible. For example, in WTO law, countermeasures are permissible after a treaty violation by a WTO member. However, these countermeasures must be approved by the WTO’s DSB (Article 22(2) DSU) or (in a different phase of the legal dispute) by a WTO arbitration panel in accordance with Article 22(6) DSU. They must also be monitored by the DSB. The risks of the judicialization in international law and the concomitant spread of proportionality balancing are legal insecurity (unpredictability of outcomes) and illegitimate judicial law-making (gouvernement des juges). The legitimacy problem raised by judges (or arbitrators) making law is more serious on the international level than in the realm of domestic law. The reason is that international judge-made law is extremely difficult to undo or to correct. Inside a state, parliament can change a judgment by enacting a law. Therefore, parliamentary

See ICTY, Trial Chamber, Prosecutor v Kupreškić et al, IT-95-16-T, 14 January 2000, para. 530: ‘While reprisals could have had a modicum of justification in the past, when they constituted practically the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply in future with international law, at present they can no longer be justified in this manner. A means of inducing compliance with international law is at present more widely available and, more importantly, is beginning to prove fairly efficacious: the prosecution and punishment of war crimes and crimes against humanity by national or international courts.’ 57

360  Handbook on global constitutionalism passivity may be qualified as acquiescence to a domestic court’s decision. This is not the case in the international sphere, where the creation of new law by adopting a new treaty is exceedingly difficult. Hence, the inaction by states (and governments) cannot in itself be considered tacit approval of international judicial activism. For that reason, superordinate balancers – that is, international courts and similar bodies – should review domestic balancing decisions only with considerable restraint. They should be cautious in overturning balancing outcomes reached at the national level. A third consequence of the judicialization of international law and the concomitant rise of proportionality, especially in its diagonal version (balancing domestic public-interest oriented measures against interests of the individual which are undergirded by international law), is the increased demand for argument and justification – already addressed by the domestic decision-makers. They seek the proper balance in the first instance. However, the prospect of a review of that balancing by international (quasi-)courts, especially by human rights courts and investment protection tribunals, imposes on any domestic authority or institution which applies international law a burden of explaining and justifying its decisions, in accordance with the principle of proportionality. Etienne Mureinik, a South African constitutional lawyer who fought apartheid, described the consistent application of proportionality as having the effect of contributing to a ‘culture of justification’ and of bidding farewell to a ‘culture of authority’ (Mureinik 1994, p. 32). Along that line, it is submitted that balancing and proportionality in international law, too, should be best understood as a requirement of legal reasoning while disclosing all relevant arguments (Vranes 2009, p. 24; Peters 2021). The creation of such a culture of justification in inter-state, supranational and transnational relations is a core contribution to global constitutionalism through the principle of proportionality.

REFERENCES Agi, M. (2022), Zur Dogmatik des Verhältnismäßigkeitsgrundsatzes im Völkerrecht der bewaffneten Konflikte und im Völkerstrafrecht, Baden-Baden: Nomos. Aleinikoff, T.A. (1986–87), ‘Constitutional law in the age of balancing’, Yale Law Journal, 96 (5), 943–1005. Barak, A. (2012), Proportionality: Constitutional Rights and their Limitations, Cambridge: Cambridge University Press. Bomhoff, J. (2013), Balancing Constitutional Rights, Cambridge: Cambridge University Press. Boylan, E. (2017), ‘Applying the law of proportionality to cyber conflicts: Suggestions for practitioners’, Vanderbilt Journal of Transnational Law, 50 (1), 217–45. Cannizzaro, E. (2000), Il principio della proporzionalità nell’ordinamento internazionale (The Principle of Proportionality in the International Order), Milan: Giuffrè. Cannizzaro, E. (2014), ‘Proportionality in the law of armed conflict’, in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford: Oxford University Press, pp. 332–52. Cass, D.Z. (2001), ‘The constitutionalization of international trade law: Judicial norm-generation as the engine of constitutionalization’, European Journal of International Law, 12 (1), 39–77. Cohen, A. and D. Zlotogorski (2021), Proportionality in International Humanitarian Law, New York: Oxford University Press. Cohen-Eliya, M. and I. Porat (2013), Proportionality and Constitutional Culture, Cambridge: Cambridge University Press. Cottier, T., R. Echandi, R. Liechti-McKee, T. Payosova and C. Sieber (2017), ‘The principle of proportionality in international law: Foundations and variations’, Journal of World Investment & Trade, 18 (4), 628–72.

Proportionality as a global constitutional principle  361 Crawford, E. (2015), ‘Proportionality’, in A. Peters and R. Wolfrum (eds), Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press. Desmedt, A. (2001), ‘Proportionality in WTO law’, Journal of International Economic Law, 4 (3), 441–80. Emiliou, N. (1999), The Principle of Proportionality in EU Law: A Comparative Study, London: Kluwer. Emmerich Fritsche, A. (2000), Der Grundsatz der Verhältnismäßigkeit als Direktive und Schranke der EG-Rechtsetzung (The Principle of Proportionality as a Directive and Barrier to EC Legislation), Baden-Baden: Nomos. Franck, T. (2008), ‘On proportionality of countermeasures in international law’, American Journal of International Law, 102 (4), 715–67. Gross, A. (2007), ‘Human proportions: Are human rights the emperor’s new clothes of the international law of occupation?’, European Journal of International Law, 18 (1), 1–35. Hattenhauer, H. and G. Bernert (eds) (1996), Allgemeines Landrecht für die Preussischen Staaten (General State Laws for the Prussian States), with an introduction by H. Hattenhauer and references by G. Bernert, 3rd edn, Neuwied: Luchterhand. Jackson, V.C. and M. Tushnet (eds) (2018), Proportionality: New Frontiers, New Challenges, Cambridge: Cambridge University Press. Kingsbury, B. and S. Schill (2010), ‘Public law concepts to balance investors’ rights with state regulatory actions in the public interest – the concept of proportionality’, in S. Schill (ed.), International Investment Law and Comparative Public Law, Oxford: Oxford University Press, pp. 75–104. Kremnitzer, M, T. Steiner and A. Lang (eds) (2020), Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice, Cambridge: Cambridge University Press. Kreß, C. and R. Lawless (eds) (2021), Necessity and Proportionality in International Peace and Security Law, Oxford: Oxford University Press. Krugmann, M. (2004), Der Grundsatz der Verhältnismäßigkeit im Völkerrecht (The Principle of Proportionality in International Law), Berlin: Duncker & Humblot. Mathews, J. and A. Stone Sweet (2011), ‘All things in proportion? American rights review and the problem of balancing’, Emory Law Journal, 60 (4), 797–875. Mitchell, A.D. (2006), ‘Proportionality and remedies in WTO disputes’, European Journal of International Law, 17 (5), 985–1008. Möller, K. (2012), The Global Model of Constitutional Rights, Oxford: Oxford University Press. Moore, J.B. (1906), A Digest of International Law, vol. 2, Washington, DC: Washington Government Printing Office. Mureinik, E. (1994), ‘A bridge to where? Introducing the Interim Bill of Rights’, South African Journal on Human Rights, 10 (1), 31–48. Newton, M. and L. May (2014), Proportionality in International Law, Oxford: Oxford University Press. O’Meara, C., (2021), Necessity and Proportionality and the Right of Self-defence in International Law, Oxford: Oxford University Press. Ortino, F. (2017), ‘Investment treaties, sustainable development and reasonableness review: A case against strict proportionality balancing’, Leiden Journal of International Law, 30 (1), 71–91. Pauwelyn, J. (2003), ‘A typology of multilateral treaty obligations: Are WTO obligations bilateral or collective in nature?’, European Journal of International Law, 14 (5), 907–51. Peter, S. (2012), Public Interest and Common Good in International Law, Basle: Helbing Lichtenhahn. Peters, A. (2007), ‘The globalization of state constitutions’, in J.E. Nijman and A. Nollkaemper (eds), New Perspectives on the Divide between National and International Law, Oxford: Oxford University Press, pp. 251–308. Peters, A. (2012), ‘Are we moving towards constitutionalization of the world community?’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford: Oxford University Press, pp. 118–35. Peters, A. (2016), ‘Verhältnismäßigkeit als globales Verfassungsprinzip’ (‘Proportionality as a global constitutional principle’), in B. Baade, S. Ehricht, M. Fink, R. Frau, M. Möldner, I. Risini and T. Stirner (eds), Verhältnismäßigkeit im Völkerrecht, Tübingen: Mohr Siebeck, pp. 1–18. Peters, A. (2021), ‘A plea for proportionality: A Reply to Yun-chien Chang and Xin Dai’, International Journal of Constitutional Law, 19 (3), 1134–45.

362  Handbook on global constitutionalism Pou-Giménez, F., L. Clérico and E. Restrepo-Saldarriaga (eds) (2022), Proportionality and Transformation: Theory and Practice from Latin America, Cambridge: Cambridge University Press. Rauber, J. (2015), ‘Verhältnismäßigkeit und völkerrechtliche Systembildung: Überlegungen zur einheitsbildenden Funktion des Verhältnismäßigkeitsgrundsatzes im Völkerrecht der Konstitutionalisierung’ (‘Proportionality and the emergence of a system of international law: reflections on the unifying function of the principle of proportionality in the international law of constitutionalization’), Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 75 (1), 259−98. Schneiderman, D. (2018), ‘Global constitutionalism and its legitimacy problems: Human rights, proportionality, and international investment law’, The Law & Ethics of Human Rights, 12 (2), 251–80. Stelzer, R.J. (2018), The Prospects for ‘Proportionality’ as a Generic and Universal Legal Principle in Public International Law, Mannheim: Dissertation. Stone Sweet, A. and J. Mathews (2019), Proportionality Balancing and Constitutional Governance, Oxford: Oxford University Press 2019. Urbina, F.J. (2017), A Critique of Proportionality and Balancing, Cambridge: Cambridge University Press. Turpin, C. and A. Tomkins (2011), Law in Context: British Government and the Constitution: Text and Materials, 7th edn, Cambridge: Cambridge University Press. Vadi, V. (2018) Proportionality, Reasonableness and Standards of Review in International Investment Law and Arbitration, Cheltenham, UK, and Northampton, MA, USA: Edward Elgar Publishing. Vranes, E. (2009), ‘Der Verhältnimäßigkeitsgrundsatz’ (‘The principle of proportionality’), Archiv des Völkerrechts, 47 (1), 1–35.

25. Written versus unwritten: two views on the form of an international constitution Bardo Fassbender

A CASCADE OF QUESTIONS The answer to the question of whether we recognize as existing, or aspire to having in the future, either an unwritten (customary law based) or a written (codified or statutory) constitution of the international community1 depends on the type of rules of international law we call constitutional. The problem of a written or an unwritten international constitution2 is therefore tantamount to the question of the meaning and purpose of a constitutional law as a part of international law.3 That question again is based on our understanding of international law, its present role and its potential in the conduct of international relations. Views on those fundamental questions differ strongly and have found a synthesized expression in different schools of thought and theories, as appears from the contributions to Parts II and III of this Handbook. For instance, if we content ourselves with an international constitutional law limited to a few meta-rules similar to H.L.A. Hart’s rule of recognition (Hart 2012, pp. 100–23), we may well do without a written constitution, locating that law instead in the spheres of informal consensus or custom. In contrast, if our expectations with respect to the reach and scope of an international constitutional law are greater, so that they correspond to the regulatory needs of the world of today, it is difficult to see how they could come to fulfilment in the absence of written constitutional law. Regarding the existence or non-existence of a written international constitutional law, we may distinguish the following questions: 1. Is there, as a matter of positive law, a part of international law which can be addressed as ‘constitutional’? 2. If this question is answered in the affirmative, from which source or sources of international law stem those ‘constitutional’ rules? 3. Are these rules written or unwritten, or both written and unwritten? 4. Is there a tendency towards a textualization of hitherto unwritten ‘constitutional’ rules? 5. If we approve of the existence of written rules, can they be associated with certain ‘constitutional’ documents in international law?

For an earlier, more detailed treatment of the subject of this chapter, see Fassbender (2016). If not indicated otherwise, the expressions ‘constitution of the international community’, ‘international constitution’ and ‘international constitutional law’ are used synonymously in this contribution. 3 For a review of the older literature using constitutional language and arguments in international law, see Fassbender (1998a, pp. 538–51). For overviews of the more recent literature, see Diggelmann and Altwicker (2008); Kleinlein (2012). For a bibliography of respective works, see Fassbender and Siehr (2012, pp. 313–22). 1 2

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364  Handbook on global constitutionalism 6. If there are such ‘constitutional’ documents, can we identify one document with a certain central character around which the other documents are grouped? 7. If there is such a central document, what are its necessary features compared to other legal texts we call ‘constitutions’? 8. Is the affirmation of the existence of such a central document contrary to the idea of an ongoing process of a ‘constitutionalization’ of international law? Some authors answer the first question and the following in the affirmative, up to the one to which their answer is no – for instance, the sixth because of a fragmentation of international law that inhibits ‘a comprehensive order of the whole system’ (Paulus 2009, pp. 69, 70, 75, 108), or the eighth because written constitutions are said to have ‘a fairly static nature’ standing in the way of an ‘organic global constitutionalism as a promise for the future’ (Schwöbel 2011, pp. 125, 133, 161, 163–5). However, if already the very first of those questions is answered in the negative, the cascade of questions breaks down. If one denies the existence of an international constitutional law as positive law (negating, for example, the possibility of a constitutional law ‘beyond the state’, or only conceding a step-by-step development of certain elements of international law resembling rules of national constitutional law), one can stop there and cease giving the matter of a written or unwritten constitution of the international community further thought. Alternatively, one can take the whole issue from the sphere of de lege lata to that of de lege ferenda. That is, we may ask whether the creation of an international constitutional law is desirable as a future development and, if so, how such a law should be brought forth, whether it should be written or unwritten, whether it should be summarized in particular documents and whether one of these documents should play a central role. Within the limited scope of the present chapter, it is not possible to try to answer all the questions identified above in a systematic and comprehensive manner. Instead, I want to shed some light on the dichotomy of a ‘written’ and an ‘unwritten’ constitution as an integral part of the international legal order by, first, discussing the importance of ‘writtenness’ in modern constitutionalism. In the following section the ‘English exception’ is addressed, that is, the absence, in the United Kingdom, of a single written document called ‘the constitution’. The idea is to supply a background for a discussion of the question whether it is persuasive to understand an international constitution as a ‘common law constitution’. In the final section, I turn to the United Nations Charter, emphasizing its quality as a written constitutional instrument of the international community.

CONSTITUTION AS A WRITTEN DOCUMENT The history of the idea and the notion of ‘constitution’ is long and complex. It can be traced back to antiquity, to the Greek Politeia and the Roman constitutio and status rei publicae (see McIlwain 1947[2007], pp. 22–60; Mohnhaupt and Grimm 2002, pp. 5–14). In the usage of different authors and in different contexts, the meaning of the notion, applied to a political community, oscillated between descriptive and normative. In medieval and early modern times, the notion bordered on and overlapped with others such as institutio, lex fundamentalis (in English fundamental law, in German Grundgesetz), and Verfassung (Mohnhaupt and Grimm 2002, pp. 14–22, 36–48, 62–6; see also Hofmann 1986, p. 261).

Written versus unwritten: two views on the form of an international constitution  365 While all that fascinating history must remain undiscussed here, it can with reason be said that from the seventeenth century onward writtenness became an ever more important characteristic of what was addressed as the ‘constitution’ of a body politic. The process culminated in the American and French revolutions, giving birth to written constitutions which became the prototype of all following state constitutions up to the present day. Before the late eighteenth century, a territory or a city could be said to have a constitution, in the sense of a well-ordered and secure relationship between the ‘government’ and certain political entities existing in their own right (such as the ‘estates of the realm’) (see Näf 1953, p. 111). However, now (in the absence of such a relationship in British colonial America, or its abolition by royal absolutism in France) a new demand arose to give a country a (‘normative’) constitution in the sense of ‘a written, systematic, comprehensive and generally applicable fundamental law, not made to settle by way of statute or contract a certain matter, or to solve a particular conflict, but made to determine the nature of the state and to organize its entire political life’ (Näf 1953, p. 108). It was the existence of such a constitution that turned a state into a ‘constitutional state’ (Verfassungsstaat). To encapsulate the law of the constitution in a written document bestows on that law a special dignity, publicity, popularity and durability (Isensee 2014, p. 43). As Karl Loewenstein, a leading authority on the history of constitutionalism, explained: It was in the seventeenth and, more insistently, the eighteenth centuries that, under the powerful stimulation of the social-contract concept, the term ‘constitution’ assumed its modern connotation. It came to signify a single document, containing the fundamental law of the state society and imbued with its specific telos, designed to curb the arbitrariness of the single power holder … and to subject him to restraints and controls …, a single document, enacted with specific solemnity, called the ‘fundamental law’, the ‘instrument of government’, or the ‘constitution’… . The written constitution offered the frame within which, in the following generations, the complete democratization of the process of political power could be accomplished … . It is safe to say that the written constitution has become the most common and universally accepted phenomenon of the contemporary state organization. (Loewenstein 1965, pp. 126, 133–6)

The important idea of a ‘supremacy’ of the constitution, that is, of the constitution taking precedence over law of ‘lower rank’ – with the consequence of ‘unconstitutional’, and therefore void, legislative acts – was in political practice generally accepted only in the twentieth century but already explained by Alexander Hamilton in 1788 in one of ‘The Federalist’ papers (Hamilton 1788[2003], pp. 466–7).

THE ENGLISH EXCEPTION There is a notable exception to the rule of states having a written constitution, referred to also in the discourse about international constitutional law, and that is England (and the United Kingdom, respectively). England significantly contributed to the Western idea of a written constitution, producing documents such as Magna Carta in 1215, the Habeas Corpus Act 1679, the Bill of Rights 1689 and the Act of Settlement 1701, which influenced the constitutional law of the United States of America and many states of the Commonwealth. Still, ‘the proud tradition of constitutional government without a written constitution has persisted in England’ (Loewenstein 1965, p. 133) until the present day. In 1733, Lord Bolingbroke defined the English constitution in that sense as follows: ‘By constitution we mean … that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to

366  Handbook on global constitutionalism certain fixed objects of publick good, that compose the general system, according to which the community hath agreed to be governed’ (Bolingbroke 1733–34 [1809], p. 157, emphasis added). This constitution is not a ‘conscious formulation by a people of its fundamental law’ but a collective term denoting ‘the substantive principles to be deduced from a nation’s actual institutions and their development’ (McIlwain 1947[2007], p. 2). However, it has often been remarked that today a significant part of the British constitutional order is indeed written because it is articulated in statutory form (see, for example, Loewenstein 1965, pp. 137–8; King 2007, pp. 5–6). It is therefore not so much the distinction between a written and an unwritten, or a ‘codified’ and an ‘uncodified’, constitution as such that matters but, rather, the consequence of the absence of a defined constitutional text, elevated to a status above ‘ordinary’ law, for the issue of supremacy of the constitution and the enforcement of that supremacy by means of law. Parliamentary sovereignty means that ‘there is no source of law higher than – that is, more authoritative than – an Act of Parliament’ (Turpin and Tomkins 2012, p. 59). That is, Acts of Parliament are not subject to constitutional limitations. If that is the case and ‘every law can be legally changed with equal ease or with equal difficulty, there arises no absolute need for reducing the constitution to a written form, or even for looking upon a definite set of laws as specially making up the constitution’ (Dicey 1885[1959], p. 90). Because there is no clear boundary between ‘law’ and ‘constitution’, ‘legality’ and ‘constitutionality’, the British constitution is not a normative or legal standard establishing ‘benchmarks against which the actions of governments and individuals can be tested’ (King 2007, p. 9). This situation has led academic observers to distinguish a ‘political constitution’ from a ‘legal constitution’, associating the former with England and Britain: ‘A political constitution is one in which those who exercise political power … are held to constitutional account through political means, and through political institutions … A legal constitution, on the other hand, is one which imagines that the principal means, and the principal institution, through which the government is held to account is the law and the court-room’ (Tomkins 2003, pp. 18–19, 21, with reference to Griffith 1979 and Tomkins 2002).

THE INTERNATIONAL CONSTITUTION AS A ‘COMMON LAW CONSTITUTION’? Some writers have explicitly likened the constitution of the international community to that of England or the United Kingdom, respectively. For instance, in his book On Global Order Andrew Hurrell wrote: ‘If we can talk at all of the constitution of international society, then it is much more like a common law constitution, that is to say a pattern of institutional practices, laws, conventions, and political norms that together define how a society is constituted’ (Hurrell 2007, p. 53, emphasis added).4 In legal scholarship, that view was prominently expressed by Christian Tomuschat: ‘It is obvious that the constitution of the international community, if it was found to exist, would display features which are largely similar to that In contrast, Hurrell sees writings ‘urging a form of international legal constitutionalism built around the UN Charter’ (Hurrell 2007, p. 80) as belonging to a ‘liberal solidarist conception of international society’ (Hurrell 2007, p. 57). He does not endorse either of these opposing views. 4

Written versus unwritten: two views on the form of an international constitution  367 of the British system of government’ (Tomuschat 1993, p. 218). States, he explained, had ‘never come consciously together to establish a basic covenant regulating the international public order and setting forth the guiding principles for the main functions of governance’ (Tomuschat 1993, pp. 218–19). Some years later, he added, again referring to the United Kingdom, that ‘[f]ailing a pouvoir constituant at the international level, the constitution of humankind can take shape only step by step, in accordance with the will of its main component actors, i.e. States’ (Tomuschat 1999, p. 88). He acknowledged the importance of the UN Charter as an expression of a ‘common law for all States’ but pointed to the Charter’s ‘distinction between members and non-members of the Organization, which in principle is incompatible with a quest for comprehensive universality’ (Tomuschat 1993, p. 219). To draw that kind of analogy between the British and an international constitution gives rise to several questions. First, it would be astonishing if of all constitutions one so unique as the British, a constitution of a type deliberately not adopted by virtually all other states of the world, should be the model of an international constitution binding on all states. We may also wonder whether a constitution of so venerable an age as the British constitution is suited for setting a pattern for a constitution of the international community of the twenty-first century. However, more importantly, the contemporary international community is lacking almost all the features which make the British ‘political constitution’ work, namely, deeply entrenched constitutional values which are accepted, upheld and defended by all political institutions in a continuous process of public discussion and accountability. What would happen to the international legal order if it was left entirely in the hands of international politics? Could such a constitutional law foster the common good of all members of the international community? Furthermore, if the international constitution corresponded to the British it would lack a decisive feature characterizing, as mentioned above, the ‘modern’ constitution of the American and French type, that is, its supremacy over ‘ordinary’ law and the enforceability of that supremacy by means of law. That is, the notion of constitution so applied to international law would be largely empty. If, therefore, the analogy drawn between the British (or English) constitution and the constitution of the international community is rather unpersuasive, the question ensues whether we can imagine, apart from the British model, an unwritten international constitution, or a constitution ‘as an ensemble of [written and unwritten] rules, procedures and mechanisms designed to protect collective interests of humankind’ (Tomuschat 1999, p. 88). Of necessity, the unwritten parts of such a constitution, to the extent that they have legal force, would have to be rules of customary international law, whereas the written rules would have to be located in the first place in international treaty law. How could the specific quality of constitutional law be attributed to those rules of customary and treaty law? To those negating the existence of a ‘formal’ constitution of the international community in the sense of a written document the only possible way is the express recognition of that constitutional quality by the members of the international community. In other words, the opinio juris of states necessary to make a certain practice or behaviour a rule of customary law would have to encompass a sense of constitutional entitlement or obligation – it would have to be an opinio juris constitutionis (Lohmann 2019, pp. 91–3, 102). In the style of Article 53 of the Vienna Convention on the Law of Treaties about peremptory norms of general international law (jus cogens), we could say that a constitutional norm of international law in that sense is a norm accepted and recognized as such by the international community of states which can be modified only by a subsequent norm of international law having the same char-

368  Handbook on global constitutionalism acter. Unfortunately, there is no empirically recordable acknowledgement by states of such customary constitutional rules of international law. Also, a quest for norms which could be said to have been informally accepted as constitutional in that way (for instance, the principle of sovereign equality of states, or the prohibition of the use of force in international relations) leads straight away to the UN Charter – that is precisely the document the constitutional quality of which is denied by the proponents of an unwritten international constitution. ‘By constitution we mean’, Lord Bolingbroke wrote, that law ‘according to which the community hath agreed to be governed’ (Bolingbroke 1733–34[1809], p. 157, emphasis added). I do not see how the international community can be said to have agreed to an unwritten constitution. To add a further thought, the development of international law since the nineteenth century, and particularly since 1945, has been characterized by an increasingly intensified process of codification, that is, ‘the more precise formulation and systematization’, in written form, ‘of rules of international law in fields where there already has been extensive state practice, precedent and doctrine’,5 with the aim of ‘achieving an international lex scripta through the international equivalent of a legislative process’ (Schachter 1983, p. 773). Given the enormous work of codification performed by the International Law Commission (ILC) (for an overview see Watts et al 2021, para. 17) and other bodies since the late 1940s, on the one hand, and the outstanding importance of issues which can be addressed as those of an international constitutional law, on the other, it would be astonishing if customary rules of such law, provided they do exist, had been excluded from that codification. In fact, in a memorandum written for the United Nations Secretary General in 1949, Professor Hersch Lauterpacht had proposed that the ILC codify not only subjects like the jurisdiction of states, or the law of treaties, but also what he called ‘the general part of international law’, that is ‘the bases and the principles of the legal system as a whole’.6 However, with the exception of the (eventually unsuccessful) ‘Draft Declaration on Rights and Duties of States’ adopted by the ILC,7 this plan remained unfulfilled. There are certainly many reasons accounting for that, but one reason appears to be a lack of agreement among states as to the substance of ‘general articles of this nature’8 beyond that which had been included in the UN Charter. There has not been any further codification of constitutional issues of the international community because there is little if any unwritten constitutional law accepted by way of custom.

THE UN CHARTER AS WRITTEN CONSTITUTION OF THE INTERNATIONAL COMMUNITY In my own work, as may briefly be recalled, I have tried to give the idea of an international constitutional law a more consistent and also more concrete meaning by closely associating it See Art. 15 of the Statute of the International Law Commission; Annex to UN General Assembly Resolution 174 (II) of 21 November 1947; Yearbook of the United Nations 1947–48 (New York 1949), p. 211. 6 See ‘Survey of international law in relation to the work of codification of the International Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the Statute of the International Law Commission. Memorandum submitted by the Secretary-General’, UN Doc. A/CN.4/1/ Rev.1 of 10 February 1949, p. 19, para. 26. 7 Yearbook of the International Law Commission 1949 (United Nations 1956), pp. 287–90. 8 See ‘Survey’ (note 6 above). 5

Written versus unwritten: two views on the form of an international constitution  369 with the UN Charter as a source of positive international law (see Fassbender 1998a, 2009a; see further Fassbender 2009b, p. 133). To borrow language from Neil Walker, this has been an effort to invoke the United Nations (Charter) ‘as a point of reference for the work of reform and re-imagination of international constitutionalism’ and to create, on the global level, ‘a suitably focused context of action’ (see Walker 2007, pp. 232–3). I have suggested that the UN Charter, although formally created as a treaty, is characterized by a constitutional quality which over the past 75 years has been confirmed and strengthened in such a way that today the instrument can be referred to as the (both substantive and formal) constitution of the international community.9 The UN Charter shows a number of strong constitutional features. In particular, it includes (explicitly and implicitly) rules about how the basic functions of governance are performed in the international community; that is, how and by whom the law is made and applied, and how and by whom legal claims are adjudicated. It also establishes a hierarchy of norms in international law. By understanding the UN Charter as a constitution, we gain a standard that permits adequate (legal) solutions to issues such as the interpretation of the UN Charter, the relationship between its law and ‘general international law’, the meaning of state sovereignty in contemporary international law (see Fassbender 2003, p. 115), UN reform (Fassbender 1998b, pp. 277–340), or the question of the extent to which the Security Council is bound by international law (Fassbender 2000). I also tried to explain that addressing the UN Charter as a constitution does not mean to equate the Charter with a state constitution. In accordance with the principle of subsidiarity, a constitution of the international community shall not and need not replicate a national constitution. Instead, its content must correspond to the specific tasks and responsibilities of the international community. In particular, the task of maintaining international peace, that is peace between independent political communities, is a task peculiar to the international community. To see the UN Charter, in terms of international law, as the constitution of the international community is not meant to idealize the instrument, the UN organization, or international law in general. It does not imply that any of the three has reached a state of perfection. It also does not mean to overestimate what a constitutional document can achieve, either in a national or in an international context. Much more modestly, it is an effort to identify and describe, by means of legal science and legal language, the profound structural changes of the international legal order that have taken place in 1945 and thereafter – changes which, as Wolfgang Friedmann put it, ‘demand a reconsideration of some of the theoretical foundations of international law’ (Friedmann 1964, p. 369). To quote Karl Zemanek, this constitutional reading of the UN Charter ‘is a specific construction of what already exists and, unlike idealistic concepts, does not propose to remodel the international legal order, but only to apply it differently in the light of the fundamental values expressed in the Charter as supreme law of the international community’ (Zemanek 2009, p. 653). For the reasons set out above, the idea of an unwritten (or ‘common law’ type) constitution of the international community is unpersuasive if we understand the notion of constitution in a sense that today is the only meaningful one, that is, as a ‘legal constitution’ providing normative standards. The idea is also unpersuasive as a description of the existing international For further scholarship in support of a constitutional quality of the UN Charter, see, in particular, Macdonald (2005, pp. 853, 859–68); Franck (2003, pp. 95–9; 2009, pp. xi–xiv); Habermas (2006, pp. 115, 160–1). 9

370  Handbook on global constitutionalism legal order. If there is no written constitution, there is no international constitution at all. The idea is likewise unpersuasive as an expression of a legal-political project to be realized in the future because none of the aims associated with the constitutional idea on a global level can be achieved with the toolbox of an unwritten constitution. If there ever was a ‘constitutional moment’10 in the development of modern international law, this was the moment of the creation of the United Nations. Admittedly, the practical long-term effect of that moment was limited, and, contrary to the hopes and expectations of many, after the end of the Cold War a similar moment did not appear again which would have made it possible to adapt the Charter to a new global environment. The current international situation is far from conducive to a constitutional order. It will be quite a challenge, and require enormous effort, to keep the constitutional ideas and aspirations represented by the UN Charter alive until a new general agreement on the foundations of a global legal order can be reached. Perhaps then the arrangement of the Charter will pass into a constitutionally ‘more perfect Union’.

REFERENCES Ackerman, B. (1991), We the People: Foundations, Cambridge, MA: Harvard University Press. Bolingbroke, H.St.J. (1733–34), ‘A dissertation upon parties’, in The Works of the Late Right Honourable Henry St. John, Lord Viscount Bolingbroke … in Eight Volumes, vol. 3, reprinted 1809, London: J. Johnson and others. Dicey, A.V. (1885), Introduction to the Study of the Law of the Constitution, 10th edn (1959), E.C.S. Wade (ed.), London: Macmillan and New York: St. Martin’s Press. Diggelmann, O. and T. Altwicker (2008), ‘Is there something like a constitution of international law? A critical analysis of the debate on world constitutionalism’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 68, 623–50. Fassbender, B. (1998a), ‘The United Nations Charter as constitution of the international community’, Columbia Journal of Transnational Law, 36 (3), 529–619. Fassbender, B. (1998b), UN Security Council Reform and the Right of Veto: A Constitutional Perspective, The Hague, London and Boston, MA: Kluwer Law International. Fassbender, B. (2000), ‘Quis judicabit? The Security Council, its powers and its legal control’, European Journal of International Law, 11 (1), 219–32. Fassbender, B. (2003), ‘Sovereignty and constitutionalism in international law’, in N. Walker (ed.), Sovereignty in Transition, Oxford: Hart, pp. 115–43. Fassbender, B. (2009a), The United Nations Charter as the Constitution of the International Community, Leiden and Boston, MA: Martinus Nijhoff. Fassbender, B. (2009b), ‘Rediscovering a forgotten constitution: Notes on the place of the UN Charter in the international legal order’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 133–47. Fassbender, B. (2016), ‘International constitutional law: Written or unwritten?’, Chinese Journal of International Law, 15 (3), 489–515. Fassbender, B. and A. Siehr (eds) (2012), Suprastaatliche Konstitutionalisierung: Perspektiven auf die Legimität, Kohärenz und Effektivität des Völkerrechts (Supranational Constitutionalization: Perspectives on the Legitimacy, Coherence and Effectiveness of International Law), Baden-Baden: Nomos.

10 I first used this term, coined by Bruce Ackerman (1991), with reference to international law in my article on the UN Charter (Fassbender 1998a, pp. 573–4).

Written versus unwritten: two views on the form of an international constitution  371 Franck, T.M. (2003), ‘Is the U.N. Charter a constitution?’, in J.A. Frowein, K. Scharioth, I. Winkelmann and R. Wolfrum (eds), Verhandeln für den Frieden – Negotiating for Peace: Liber Amicorum Tono Eitel, Berlin: Springer, pp. 95–106. Franck, T.M. (2009), ‘Preface: international institutions: why constitutionalize?’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. xi–xiv. Friedmann, W. (1964), The Changing Structure of International Law, London: Stevens & Sons. Griffith, J.A.G. (1979), ‘The political constitution’, Modern Law Review, 42 (1), 1–21. Habermas, J. (2006), The Divided West, trans. C. Cronin, Cambridge: Polity Press. Hamilton, A. (1788), ‘The Judiciary Department’ (The Federalist No. 78), reprinted in C. Rossiter and C.R. Kesler (eds) (2003), The Federalist Papers, New York: Penguin/Signet. Hart, H.L.A. (2012), The Concept of Law, 3rd edn, P.A. Bulloch and J. Raz (eds), Oxford: Oxford University Press. Hofmann, H. (1986), ‘Zur Idee des Staatsgrundgesetzes’ (‘About the idea of the fundamental law of state’), in H. Hofmann, Recht – Politik – Verfassung: Studien zur Geschichte der politischen Philosophie, Frankfurt: Alfred Metzner, pp. 261–96. Hurrell, A. (2007), On Global Order: Power, Values, and the Constitution of International Society, Oxford: Oxford University Press. Isensee, J. (2014), ‘Legitimation des Grundgesetzes’ (‘The legitimation of the German fundamental law’), in J. Isensee and P. Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd edn, vol. 12, Heidelberg: C.F. Müller, pp. 3–52. King, A. (2007), The British Constitution, Oxford: Oxford University Press. Kleinlein, T. (2012), ‘Between myths and norms: Constructivist constitutionalism and the potential of constitutional principles in international law’, Nordic Journal of International Law, 81 (2), 79–132. Loewenstein, K. (1965), Political Power and the Governmental Process, 2nd edn, Chicago, IL: University of Chicago Press. Lohmann, O. (2019), Die Auslegung des Völkerverfassungsrechts (‘The Interpretation of International Constitutional Law’), Ph.D. thesis, University of St. Gallen, accessed 31 January 2022 at https://​www​ .e​-helvetica​.nb​.admin​.ch/​. Macdonald, R.St.J. (2005), ‘The international community as a legal community’, in R.St.J. Macdonald and D.M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community, Leiden: Martinus Nijhoff, pp. 853–910. McIlwain, C. (1947), Constitutionalism: Ancient and Modern, reprinted 2007, Indianapolis, IN: Liberty Fund Press. Mohnhaupt, H. and D. Grimm (2002), Verfassung: Zur Geschichte des Begriffs von der Antike bis zur Gegenwart (‘Constitution: The History of the Notion from Ancient Times to the Present’), 2nd edn, Berlin: Duncker & Humblot. Näf, W. (1953), ‘Der Durchbruch des Verfassungsgedankens im 18. Jahrhundert’ (‘The breakthrough of the idea of constitution in the 18th century’), Schweizer Beiträge zur Allgemeinen Geschichte, 11, 108–20. Paulus, A.L. (2009), ‘The international legal system as a constitution’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 69–109. Schachter, O. (1983), ‘The nature and process of legal development in international society’, in R.St.J. Macdonald and D.M. Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory, The Hague: Martinus Nijhoff, pp. 745–808. Schwöbel, C.E.J. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Martinus Nijhoff. Tomkins, A. (2002), ‘In defence of the political constitution’, Oxford Journal of Legal Studies, 22 (1), 157–75. Tomkins, A. (2003), Public Law, Oxford: Oxford University Press. Tomuschat, C. (1993), ‘Obligations arising for states without or against their will’, Collected Courses of The Hague Academy of International Law, vol. 241, The Hague: Martinus Nijhoff, pp. 195–374.

372  Handbook on global constitutionalism Tomuschat, C. (1999), ‘International law: ensuring the survival of mankind on the eve of a new century’, Collected Courses of The Hague Academy of International Law, vol. 281, The Hague: Martinus Nijhoff, pp. 9–438. Turpin, C. and A. Tomkins (2012), British Government and the Constitution: Text and Materials, 7th edn, Cambridge: Cambridge University Press. United Nations (ed.) (1956), Yearbook of the International Law Commission 1949: Summary Records and Documents of the First Session Including the Report of the Commission to the General Assembly, UN Doc. A/CN.4/SER.A/1949 New York: United Nations. Walker, N. (2007), ‘Making a world of difference? Habermas, cosmopolitanism and the constitutionalization of international law’, in O.P. Shabani (ed.), Multiculturalism and Law, Cardiff: University of Wales Press, pp. 219–34. Watts, A., M. Wood and O. Sender (2021), ‘Codification and progressive development of international law’, in R. Wolfrum and A. Peters (eds.), Max Planck Encyclopedia of Public International Law, accessed 31 January 2022 at https://​opil​.ouplaw​.com/​home/​mpil. Zemanek, K. (2009), ‘Review of Bardo Fassbender, The United Nations Charter as the Constitution of the International Community’, Austrian Review of International and European Law, 14, 651–62.

26. Transnational litigation networks: agents of change in the global constitutional order Jill Bähring

THE ROLE OF AGENTS OF CHANGE IN GLOBAL CONSTITUTIONALISM This chapter seeks to explore the role of constituent power in global constitutionalism by the example of transnational litigation networks engaging in climate change litigation. Within global constitutionalism, whose four main principles are rule of law, separation of powers, constituent power, and rights (Lang and Wiener, Chapter 1 in this Handbook), this power is exerted by several agents, such as judicial bodies (Sandholtz 2019), international law makers and academics (Peters 2015: 2), or even actors that would not immediately come to mind when thinking of constituent power, such as the European Central Bank (Colón-Ríos et al 2021: 945–50). Together, the sum of these actors can be seen as a ‘representative community’ of constituent power as a whole (Lang and Wiener, Chapter 1 in this Handbook), which are able to take a direct role in shaping and enhancing international law (Carrai 2016: 96). As Colón-Ríos et al put it, ‘constituent power functions as a “bridge concept” between the sphere of law and that of politics’ (Colón-Ríos et al 2021: 926). Exploring individual agents of change exerting such constituent power enables an examination of the bottom-up dynamics of global constitutionalism, such as the individual or group contributions of specific actors or types of actors. However, as Wiener (2017: 11) notes, ‘entitlement to “agency” on behalf of the governed is conditioned by politico-legal as well as socio-cultural context variables’. It is therefore crucial not only to ask the questions of who participates and how, but also to examine the surrounding conditions of said participation. Global constitutionalism enables asking the question of whose participation matters (or has impact) by acknowledging the relevance of the conditions of said participation as a fundamental concern relating to its accessibility. This is especially important when examining the intertwined relationship between agents of change, who create constituent power, and how they are able to use conditions such as the rule of law, the separation of powers, and the existence of rights in order to shape global constitutionalism. This chapter examines the role of transnational litigation networks as agents of change in the global constitutional order as an example of exerted constituent power, and develops an interdisciplinary methodological framework that enables an assessment of their methods of validation of the contestation of legal norms. In the first section, I examine the normative approach of transnational litigation networks to litigation, in which success only plays a minor role for maximizing impact. Taking my findings into account, I explain the challenge of creating an appropriate methodological framework that allows for an assessment of their activities. In the second section, by exploring the exemplary area of engagement of climate litigation, I trace the emergence of transnational litigation networks from their origins until today. The third section assesses global resources of normative change by taking the Urgenda Case in the Netherlands as a case study. In the 373

374  Handbook on global constitutionalism fourth section, I develop a normative theoretical framework based on viewing transnational litigation networks as actors being capable of creating normative institutions of networked constitutionalism. With this methodology, I demonstrate that I can trace interconnected practices of norm validation throughout the Urgenda Case, which creates normative validity through networking.

TRANSNATIONAL LITIGATION NETWORKS AND THE LEAP FROM THE ‘IS’ TO THE ‘OUGHT’ OF THE LAW Transnational litigation networks have emerged in recent years as a phenomenon of strategic litigation lawyers working together across jurisdictions, cultures and several topics of interest (Lobel 2003; Osofsky 2010; Duffy 2018; Novak 2020; Graser and Helmrich 2019). Their activities cover a wide range of topics: they shape climate policy with the Urgenda Case in the Netherlands (McGrath 2019), abolish the mandatory death penalty in Kenya and Barbados (Novak 2020), or seek to stop drone strikes conducted by the United States of America in Pakistan and Yemen (ECCHR 2016; Purcell 2021). As such, TLNs are an example of exerted (and expanding) constituent power within global constitutionalism. Especially in relation to climate change and the climate justice movement, there has been an influx of litigation activities around the world, through which ‘lawyers and litigants are increasingly reaching beyond the boundaries of the state, linking with those who have preceded them, and sharing scientific research, legal arguments and expertise’ (Murcott and Webster 2020: 146). In taking up a client’s case and bringing it into court, transnational litigation networks seek to fight for fundamental norms such as justice,1 enforcing human rights,2 and bringing about broader social change.3 The ECCHR, a strategic litigation law firm situated in Germany, describes their approach as: to use legal means to tackle injustices that have not been adequately addressed in law or politics. It gives a platform for people affected by rights violations to be seen and heard, triggers discussion of these violations, and highlights weaknesses and gaps in the law. Successful strategic litigation brings about lasting political, economic or social changes and develops the existing law. Public outreach materials accompanying the case can help to explain the context of the proceedings. This increases the progressive and precedent-setting impact of the legal action.4

This definition, with small variations, is quite common among transnational litigation networks, with the notion of societal change as recurring motivation.5 Their goals therefore exceed the traditional realm of law, and they use the case as an opportunity for broader engage

TRIAL International (n.d.), Who We Are. Available at: https://​trialinternational​.org/​who​-we​-are/​. ECCHR (n.d.), About Us. Available at: https://​www​.ecchr​.eu/​en/​about​-us/​ 3 Child Rights International Network (CRIN) (n.d.), What is strategic litigation? Available at: https://​archive​.crin​.org/​en/​guides/​legal/​guide​-strategic​-litigation/​what​-strategic​-litigation​.html. 4 ECCHR (n.d.) Strategic Litigation. Available at: https://​www​.ecchr​.eu/​en/​glossary/​strategic​ -litigation/​. 5 See also: Batros and Khan 2020; Open Society Justice Initiative (n.d.), Strategic Litigation. Available at: https://​www​.justiceinitiative​.org/​tools/​strategic​-litigation; PILP (n.d.), Strategic Litigation. Available at: https://​pilpnjcm​.nl/​en/​strategic​-litigation/​; CCR. (n.d.). What we do. Available at: https://​ ccrjustice​.org/​home/​what​-we​-do. 1



2

Transnational litigation networks: agents of change in the global constitutional order  375 ment with the issue than a traditional litigation strategy would allow – an approach sometimes called ‘strategic litigation’. It is a relatively new term in academic literature that is used to describe a set of goals and methods of litigation networks (Graser and Helmrich 2019). Other popular terms describing this practice are cause lawyering (Hilbink 2006), public interest litigation,6 or impact litigation.7 However, a successful litigation case is, at least for many transnational litigation networks, not necessarily tied to a legal victory. As Jules Lobel, former director of the Center for Constitutional Rights (CCR), explains, any lost case can still be successful if it leads to long-term political success (Lobel 2003; Kaleck 2019: 23). With this, they deviate from the generally accepted ‘amoral ethical role’ (Pepper 1986) of attorneys with a focus on client-centred representation (Kruse 2011). Instead, their goal is to ‘make the law “better”’ (Fischer-Lescano 2021: 299). As Azmy writes about the CCR’s founder Michael Ratner,8 he used the ‘faith in the potentially redemptive power of law both as a means to critique power and articulate principle’ (Azmy 2021: 39) in order to achieve social change beyond the individual case. Transnational litigation network’s actions involving litigation are therefore normative in nature. Due to the manifold normative implications of their activities and the strong intersection of these activities with national, international and transnational law, transnational litigation networks are a contemporary, highly interesting research subject for global constitutionalism. Legal research, however, is often not concerned with normativity; it is rather motivated by current debates in doctrinal research or legal practice, which in itself suffices as research motivation (Taekema 2018: 3). As Westerman states, ‘[t]he legal system is not only the subject of inquiry, but its categories and concepts form at the same time the conceptual framework of legal doctrinal research’ (Westerman 2009: 1). This creates a divergence between the ‘Is’ and the ‘Ought’ of the law (van Klink and Lembcke 2016: 217). Uncovering the Ought of the law and its resulting questions, e.g., asking where the validity of law is rooted (other than in positive law), or inquiring about the emergence of a new norm that is not yet formalized into positive law, means to address the law’s normativity. In recent years, legal scholarship has therefore increasingly relied on interdisciplinary methodology and methods to broaden the scope of research and to be able to inquire about these kinds of questions (Cotterrell 2006; Taekema 2018). Constructivism in international relations theory offers an opportunity to explore normative change (Puetter and Wiener 2009: 6) by questioning the social relationships of its actors and their ‘normative baggage’ (Wiener 2009: 191), which is defined as the normative premises actors bring to the table when engaging with a norm. This normative ‘baggage’ naturally also influences their actions. Constructivism has

ECCHR (n.d), Public Interest Litigation. Available at: https://​www​.ecchr​.eu/​glossar/​public​ -interest​-litigation/​. 7 Child Rights International Network (CRIN) (n.d.), What is strategic litigation? Available at: https://​archive​.crin​.org/​en/​guides/​legal/​guide​-strategic​-litigation/​what​-strategic​-litigation​.html; Open Society Justice Initiative (n.d.), Strategic Litigation. Available at: https://​www​.justiceinitiative​.org/​tools/​ strategic​-litigation. 8 Michael Ratner was a radical US lawyer, who is often cited as one of the most influential figures in US human rights litigation. He founded the New York based non-profit law firm CCR, with which he, among other cases, fought against indefinite detention in Guantánamo (Azmy 2021: 32–62; Ratner and Smith 2021). During that time, Ratner inspired Wolfgang Kaleck, who later became the founder and director of the ECCHR in Berlin, to work on human rights litigation in Europe (Kaleck 2019). 6

376  Handbook on global constitutionalism greatly contributed to norms research by ‘considering the way in which world society forces constitute the political fabric of international society, and by highlighting the politics of values that attends this process of constitution’ (Reus-Smit 2005: 210). As a normative social theory, a constructivist perspective can contribute to a better understanding of the law as well as its social interpretation and effects (Cotterrell 2006: 5). Normative change manifests when actors engage with a norm – such as transnational litigation networks engaging with a norm via legal and non-legal avenues. They demonstrate their norm-generative agency in engaging with the norm in different contexts in order to create ‘social facts’ (Wiener 2018: 33). Wiener describes strategic litigation networks as a new type of actor engaged in normative contestation of fundamental norms who exhibit norm-generative practices in global society (Wiener 2018). Contestation is defined as ‘a social practice of objecting to or critically engaging with norms’ whose impact greatly depends on access to ‘practices of norm validation’ (Wiener 2018: 2). Similarly, climate litigation is seen as ‘a social process where societal agents pursue political, legal, and overall societal objectives’ (Zengerling et al 2021: 93). Climate litigation involves judicial, political and constitutional institutions at the micro, meso and macro scales of the global order (Zengerling et al 2021: 91). This makes it a diverse field of research with a ‘“multiscalar” character, composed of actors, norms and procedures from subnational, national and supranational levels of governance’ (Paiement 2020: 126). Constructivism offers a model that transcends the macro-, meso- and micro-levels of analysis and provides a model for the emergence of normative values in which they can be traced back to distinct practices of validation (Hofius, 2016: 15; Wiener, 2018: 51–2). Tracing the practices of norm validation also brings the actors driving this normative change to the foreground (Wiener 2018) and can contribute to a better understanding of the impact of transnational litigation networks as a constituent power in global constitutionalism. The assumption that networks are a powerful tool for global governance is not new (Hamann and Ruiz Fabri 2008: 481; Perez 2020: 476; Slaughter and Zaring 2006). For example, Perez and Stegman describe transnational legal authority as ‘an emergent network-based phenomenon’ (Perez and Stegmann 2018: 1–2) in which private transnational authorities develop legal authority independent from state-based public law – a process he calls ‘networked constitutionalism’ (Perez 2020: 473).9 This networked constitutionalism arises (and can be empirically measured) through cross-referencing of legal norms, indirect ties through affiliation and direct institutional links (Perez 2020). As he argues, the density of these connections can be evaluated and contribute to a ‘joint ethos’ (Perez 2020: 486). Unlike private transnational legal regimes, which can develop independent from state-based public law as closed legal or near-legal systems, climate litigation is characterized by ‘mutually incompatible understandings of the fundamental bases of both scientific knowledge and legal norms’ in which all these areas of law ‘each present possible frameworks – for creating agreements, establishing consequences of (in)action, and creating modes of responsibility’ – and ‘no frame controls and contains everything’ (Paiement 2020: 129). Based on as assessment of transnational litigation networks with the framework of contestation and Perez’s observations on self-referencing and attribution, I develop the idea of ‘contestation While Perez makes interesting observations on the network characteristics of transnational law, his original scope is limited to assessing the validity of private transnational legal structures such as self-certification regimes (Perez 2020: 473). 9

Transnational litigation networks: agents of change in the global constitutional order  377 networks’ and assess the norm-validating practices in a social, formal and cultural context of transnational litigation networks. As Wiener notes, the dual quality of norm lies in them being ‘both structuring and socially constructed’ (Wiener 2018: 28). As such, constructivism offers a framework that allows accounting for social dynamics. These can be measured as network topology and dynamics (Perez 2020: 480). The following sections will illustrate the history of transnational litigation networks as agents of change in the global constitutional order. I apply a constructivist approach to assess three global resources of climate litigation with the example of the Urgenda Case, and subsequently develop the argument that transnational litigation networks build a network of contestation, through which they establish several forms of normative validation of their contestation.

ORIGINS AND HISTORY OF (CLIMATE CHANGE) LITIGATION The concept of strategic litigation originates from the Anglo-American legal realm, where there is a strong rights-based tradition that allowed a variety of stakeholders, among them attorneys, non-governmental organizations, and social movements, to work on issues of human rights and justice for the past several decades (Kaleck 2019: 21). Among the first institutionalized litigation firms were the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU). Their cases were often concerned with constitutional rights claims of women, African Americans and businesses (Tushnet 2008: 377–8). They have achieved considerable successes in establishing constitutional rights in the United States through strategic litigation. Among them is the NAACP Legal Defense Fund’s strategic coordination of five lawsuits that challenged segregation in elementary and secondary schools, which resulted in one of the most important cases in US legal history: the US Supreme Court holding school segregation unconstitutional in Brown v Board of Education (1954, 1955)10 (Tushnet 2008: 381). Later, the NAACP Legal Defense Fund’s strategic approach to litigation proved itself by becoming the blue print for ‘impact litigation’ in a broader context (Tushnet 2008: 383). In the 1960s, the New York based human rights law firm CCR was formed by civil rights lawyers from the US American South as a mean to gain legal funds to support the civil rights movement (Ruben 2011: 25). They famously fought several litigation cases against human rights violations in Guantánamo (Azmy 2021), including transnational litigation efforts against a variety of related human rights issues (ECCHR 2022: 6). Tushnet describes these efforts as a ‘rights revolution’ in which the ‘language of rights played a major part in political and legal contestation’ (Tushnet 2008: 377). The Sabin Center for Climate Change Law indicates as the earliest climate case in the United States the year 1986,11 with 1,372 cases in the United States and 508 cases globally 10 Brown v. Board of Education, 347 U.S. 483 (1954); Brown v. Board of Education II, 349 U.S. 294 (1955). 11 The case City of Los Angeles v National Highway Traffic Safety Administration (1986) (City of Los Angeles v. National Highway Traffic Safety Administration, 912 F.2d 478 (D.C. Cir. 1990) was a challenge to a decision not to prepare environmental impact statement for Corporate Average Fuel Economy (CAFE) standards for the model years 1987–1989 (Sabin Center for Climate Change Law and Arnold & Porter, February 2022. Available at: http://​blogs2​.law​.columbia​.edu/​climate​-change​-litigation/​search/​ ?fwp​_per​_page​=​100​&​fwp​_sort​=​filing​_year​_asc (last accessed 6 February 2022)).

378  Handbook on global constitutionalism as of February 2022.12 Climate change litigation as a specific area of litigation has seen an increase over the past two decades (Setzer and Higham 2021), during which a large number of lawsuits have been initiated against public and private actors alike, such as governments, private companies or individuals. These lawsuits, which mostly take place in national courts, seek to protect biodiversity, increase national emission reduction commitments, or hold firms accountable for their environmental impact (Burns and Osofsky 2009; Setzer and Vanhala, 2019; Eskander et al 2021; Setzer and Higham 2021). There is a growing body of research on national and international climate litigation. Beyond interpreting individual cases in their respective jurisdictions (Verschuuren 2019; Hughes 2019), the research ranges from developing legal strategies and arguments of climate litigation (Liran 2019; McCormick et al 2018; Walters, 2019); as well as analysing legal arguments (Doelle and Seck 2019; Gaynor et al 2010; Minnerop 2019). The legal analysis of climate litigation is complemented by a smaller body of research on climate litigation in Global Governance and international relations. For example, Setzer and Vanhala (2019) conduct a thorough analysis of climate litigation trends, arguments and actors. It is generally understood that there are at least three typologies of climate litigation, which are divided into litigation ‘waves’ (Setzer and Higham 2021: 23). These inevitably overlap as there are no clear-cut shifts from one wave to the next. Nevertheless, these typologies help us understand the strategic development and the transnational nature of climate litigation. The first wave of climate litigation (before 2007) occurred mainly in the United States and Australia and was coined by administrative cases against governmental bodies in order to raise environmental standards. In the second wave (2007–2015), there was a considerable expansion of climate litigation cases to European jurisdictions. During this time period, climate litigation actors developed an increasing awareness about climate litigation ‘as a “gap-filler” in the absence of ambitious international action’ (Setzer and Higham 2021: 23). In the current third wave (2015 to present), there is a further expansion of climate litigation cases both in terms of volume of cases as well as occurrence across the globe (see e.g. recent cases in China, Norway or Guyana).13 The third wave also shows a diversification of types of claims and defendants. Most remarkable, however, is a shift in the argumentation pattern in climate litigation. As opposed to traditional human rights cases, climate litigation’s arguments have long been science-based and sought to attach causality to climate damages (Gerrard 2013; Marjanac and Patton 2018). In the third wave of climate litigation, climate litigation research notes a strong turn to human rights in the legal arguments (Peel and Osofsky 2018; Batros and Khan 2020; Burgers and Staal 2019). As Setzer and Higham (2021: 6) note, the three most important grounds for climate cases in this third wave are constitutional law, administrative law and human rights claims, with, as of July 2021, more than 100 human rights cases related to climate change globally – of which more than one-third have been filed between 2020 and May 2021. This shows that the legal argumentation of climate litigation experienced a trans-

The database, as the authors note, is not exhaustive and requires, among other things, that the cases’ main argument be climate-related in order to be included (Sabin Center for Climate Change Law and Arnold & Porter, February 2022. Available at http://​climatecasechart​.com/​climate​-change​-litigation/​ about/​(last accessed 6 February 2022)). 13 See Zhao et al 2019 for the prospects of climate litigation in China; Janki 2020 for a summary of the events in Thomas v De Freitas v Guyana, 2021-HC-DEM-CIV-FDA-742 (Guyana Supreme Court, ongoing); and Duffy and Maxwell 2020 for a review of the People v Arctic Oil case. 12

Transnational litigation networks: agents of change in the global constitutional order  379 nationalization in which transnational legal arguments based on instruments of transnational law play an increasingly important role (Peel and Lin 2019). Climate litigation is an inherently transnational phenomenon (Aykut and Maertens 2021). Judgments like Urgenda can be identified as accelerating moments that create momentum by applying new laws and argumentation strategies (McGrath 2019; Sharp 2019; Bodansky 2005; Jacometti 2019). However, they have sometimes been described as ‘judicial overreach’ due to their political character (Kuh 2019; Fahner 2018; Voigt 2019) or as problematic in terms of democratic separation of powers (Wegener 2019). The Cluster of Excellence CLICCS (Climate, Climatic Change, and Society) has identified several enabling and constraining conditions for the dynamics of climate litigation (Aykut, Wiener et al 2021: 45). As they argue, climate litigation is a driver of deep decarbonization and climate justice that can generate global resources which then become available to other societal actors or drivers. As such a driver, CLICCS has identified three core global resources generated by climate litigation: ‘legal precedence (case law), network capacities (litigation networks spanning micro, meso, and macro scales, which facilitates hybrid knowledge production and circulation), and agenda-setting (facilitated by media coverage)’ (Aykut, Wiener et al 2021: 45). Nonetheless, the body of research on climate litigation is still lacking a framework for measuring the impact of climate litigation (Setzer and Vanhala 2019: 12–13). Taking climate change litigation with the Urgenda Case as an example, this chapter explores the constituent and, with that, the contestation powers of transnational litigation networks in global constitutionalism, and how their practices of norm validation accumulate to a networked contestation by means of shared normative values. In that, it aims to provide an analytical framework to trace the dynamics of climate litigation.

ASSESSING GLOBAL RESOURCES OF NORMATIVE CHANGE – THE EXAMPLE OF THE URGENDA CASE The Urgenda Case is a recent example of successful transnational climate change litigation that sparked several other climate cases around the globe (Eskander et al 2021: 54). It was brought by the Urgenda Foundation’s Climate Litigation Network together with 900 Dutch citizens, who sued the Dutch government to obligate it to increase its efforts to prevent climate change. The case has recently inspired a wave of climate change litigation around the planet as the first case to successfully argue for stricter emission reduction targets for a government (Eskander et al 2021: 54). The following section explores the three global core resources of climate litigation by the example of the Urgenda Case, on which a constructivist normative contestation framework (Wiener 2009; 2018) is applied. As Wiener explains, contestation means to critically engage with a norm by practices of norm validation, such as the climate litigation actors who seek the reduction of greenhouse gas emissions to prevent climate change. In order to have normative impact, they need to engage in ‘practices of norm validation’ (Wiener 2018: 2). The access to these practices constitutes an actors’ opportunity structure, that is, enabling and constraining conditions applying to individual actors that determine how, where, and to what extent, they are able to contest norms (Wiener 2020). Applying this, the identified resources of climate litigation (agenda-setting, case law and networking capacities) serve as a categorization of the opportunity structure of Transnational Climate Litigation Networks as the apparent three distinct normative environments that have been identified to

380  Handbook on global constitutionalism advance climate litigation. I argue that these resources are the forums where ‘norms are meaningfully interpreted through interaction, and where meanings change through re-enacting the normative structure of meaning-in-use’ (Wiener 2018: 28). Through their networking nature, they are able to use contestation as a mean to proliferate their normative validation practices. Agenda-setting This section will describe cultural norm-validating practices around the Urgenda Case involving agenda-setting, media coverage and advocacy efforts. Albeit the case was first decided in 2015, the Urgenda Foundation was founded in 2008 as a climate activist group representing the interests of almost 900 Dutch citizens. The two prominent founders of the Urgenda Foundation are academics in the Netherlands, with one being a professor for Transitions and Transition Management at the Erasmus University in Rotterdam, who has published over 200 publications on climate change and climate change management throughout his career,14 and the other one being the former campaigning Director of Greenpeace Netherlands and former director of the DRIFT Research Institute for Sustainability and Transitions at the Erasmus University Rotterdam.15 The Urgenda Foundation has engaged in public outreach regarding climate change at least since 2012, when it wrote a letter to the Dutch government asking it to reduce greenhouse gas emissions, and announcing it would proceed to sue the government in the case of continuous inaction (Harvey 2012). In its response, the Dutch government acknowledged that its actions were indeed insufficient, but rejected the Foundation’s ask as too ambitious. Upon this reply, the Foundation concluded that the state is involved in a wrongful act by failing to protect its citizens from climate change.16 In the same year, the attorney of the Foundation published a book outlining potential legal recourse for climate change and arguing that human rights are violated by a state’s failure to address climate change (Cox 2012a), as well as an essay in the British Newspaper The Guardian, in which he states that inaction against climate change puts ‘Western countries at serious risk of committing human right violations on a scale nobody had thought to ever see again after world war two’ (Cox 2012b). In 2013, the Urgenda Foundation and its co-plaintiffs submitted a subpoena to the District Court in The Hague.17 In 2014, an academic publication on the liability of European states for climate change followed (Cox 2014). After the case was first decided by the District Court of The Hague in 2015, another journal publication reflecting on this success followed (Cox 2016). As Tessa Khan, co-director of the Urgenda Foundation’s Climate Litigation Network (CLN) (which will be addressed more extensively in the next sections) stated, the goal is to drive ‘a clear narrative of responsibility’ (Khan 2019) attributing the climate crisis to governments and the fossil fuel industry. When the judgment was confirmed at the Dutch Supreme Court in 2019, the United Nations High Commissioner on Human Rights, Michelle Bachelet, released an official statement endorsing the Court’s decision and 14 Erasmus University Rotterdam, n.d. Profile: Jan Rotmanns. Available at: https://​www​.eur​.nl/​en/​ people/​jan​-rotmans. 15 LinkedIn, n.d. Profile: Marjan Minnema. Available at: https://​www​.linkedin​.com/​in/​marjan​ -minnesma​-b127944/​?originalSubdomain​=​nl. 16 Urgenda Foundation, n.d. Climate Case explained. Available at: https://​www​.urgenda​.nl/​en/​ themas/​climate​-case/​climate​-case​-explained/​. 17 Urgenda Foundation, n.d. Climate Case explained. Available at: https://​www​.urgenda​.nl/​en/​ themas/​climate​-case/​climate​-case​-explained/​.

Transnational litigation networks: agents of change in the global constitutional order  381 stating that ‘the decision confirms that the Government of the Netherlands and, by implication, other governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases’.18 In 2020, Ben Batros and Tessa Khan published a discussion paper on how to think strategically about climate litigation (Batros and Khan 2020). Batros also served as Appeals Counsel at the International Criminal Court, worked at the Open Society Justice Initiative as a litigator, and is Director of Legal Strategy at the Center for Climate Crime Analysis since the beginning of 2020.19 By putting climate change and government responsibility on the public and legal agenda, the Urgenda Foundation and its individual stakeholders engage in a cultural practice of norm validation ‘which draws on and therefore reflects the effect of individual everyday experience on normative change in global society’ (Wiener 2018: 45). Using advocacy methods, individual agenda-setters are able to influence the public narrative by politicizing the issue and use the litigation as ‘leverage over actors and institutions capable of making the desired changes’ (Keck and Sikkink 1998: 173). Hence, the agenda-setting is validated by the actor’s normative ‘interpretation on the ground’ (Wiener 2018: 45) such as Rotmanns’s, Khan’s, or Cox’s, and reflects the Urgenda Foundation’s access to the normative opportunity structure to place opinions and topics onto both the public and the academic agenda. It also underlines their expertise in both law and climate change science to support their validity claims. The timeline shows that the way of contestation of climate change regulation by raising the topics of human rights claims and state responsibility was not a mere legal strategy in the lawsuit, but a topic carefully placed in advance that can be traces to these points of contestation. As current research shows, climate litigation is able to build transnational narratives of urgency and crisis across the globe. As Paiement describes it, climate litigation ‘involves the building of narratives about time, the future, timelines for action and consequences, and the urgency with which societies should responsibly mitigate global warming’ (Paiement 2020: 122). This section illustrates the claimant’s efforts in creating that narrative before, during, and after the litigation proceedings in order to create long-lasting agenda-setting capabilities by the means of individual contestation. In the case of Urgenda, these lead to a successful cultural validation of the narrative of urgency, crisis and responsibility. Wonneberger and Vliegenthart point out that while public attention for a case is independent from a successful litigation in court, it is nevertheless a crucial requirement for impact outside the court because it can stimulate the substantial issue the lawsuit seeks to address (Wonneberger and Vliegenthart 2021: 700). The cultural validation of the contestation of climate change regulation by Urgenda by means of their agenda-setting capabilities then leads to an increase of the importance of these topics in other domains (Wonneberger and Vliegenthart 2021: 701). This can be illustrated by the increase of scientific publications on climate change litigation after the Urgenda Case (Setzer and Vanhala, 2019), which points to not only an increased academic interest in the particular case, but also to more general agenda-setting capabilities (Wonneberger and Vliegenthart 2021: 700). Today, the narrative of human rights violations by government inaction against climate change is a common narrative present in many climate litigation cases. Among others, 18 OHCHR, Bachelet welcomes top court’s landmark decision to protect human rights from climate change. Press release, 20 December 2019. Available at: https://​www​.ohchr​.org/​EN/​NewsEvents/​Pages/​ DisplayNews​.aspx​?NewsID​=​25450​&​LangID​=​E. 19 LinkedIn. n.d. Ben Batros. Available at: https://​www​.linkedin​.com/​in/​ben​-batros​-510b0a15/​.

382  Handbook on global constitutionalism Neubauer v Germany and the People v Arctic Oil case20 also draw on the state’s responsibility to protect its citizens from climate change and its effects. In addition, climate change is a continuous present topic in the media, accelerated by the increasing number of extreme weather events (Schiermeier 2021). As Paiement notes, such increased media coverage also signals a broader dynamic of societal support (Paiement 2020). In that, it becomes evident that strong narratives can create agenda-setting capacities and, therewith, societal support. Case Law This section will describe formal norm-validating practices involving case law and other legal references. The Urgenda Foundation brought the case in 2013 by trying to mandate the Dutch government to reduce national greenhouse gas emissions to up to 40 per cent below the 1990 level by 2020.21 The argument was largely based on the goal of maintaining a 50 percent chance that global warming can be limited to 2 degrees Celsius as agreed under the United Nations Framework Convention on Climate Change (UNFCCC) in 2010, as well as the United Nation’s Intergovernmental Panel on Climate Change (IPCC) models stating that maximally 450 parts per million (ppm) CO2-equivalent would allow to maintain this goal. According to the IPCC models, industrial economies would need to reduce their greenhouse gas emissions by 25 to 40 percent of the level of 1900 (Paiement 2020: 131). It also argued on several grounds of transnational law, for example nuisance law based in national law, the Kyoto Protocol, as well as Articles 2 and 8 of the European Convention on Human Rights (ECHR). In 2015, the District Court of The Hague found the governments’ existing efforts an insufficient contribution to their global commitment to keep the global temperature increase within 2 degrees Celsius and concluded the Dutch state had a duty to mitigate climate change due to the severity of climate change and its associated risks, and ordered the government to limit greenhouse gas emission to 25 per cent below the levels of 1990 by 2020 (Sabin Center for Climate Change Law 2022). The judgment established this duty under the tort of hazardous negligence (Yoshida and Setzer 2020). The Dutch government appealed and the case was brought in front of the District Court of Appeal. During that time, the Paris Agreement came into effect and committed the Netherlands as one of its signatories to limit global warming to a maximum increase of 2 degrees Celsius (Paiement 2020: 133). Here, Urgenda was able to argue with the provisions of the recently instantiated Paris Agreement formalizing the 2 degrees Celsius goal. The foundation argued that the Dutch state was doing too little to prevent the climate crisis, which will eventually lead to the world being uninhabitable for a large part of its population. It also argued that the Netherlands, albeit only contributing a small portion

20 Neubauer et al v Germany, 1 BvR 2656/18, 1 BvR 288/20, 1 BvR 96/20, and 1 BvR 78/20, Order of the First Senate, 24 March 2021 (German Federal Constitutional Court (BVerfG)); Greenpeace Nordic Association v. Ministry of Petroleum and Energy (2020) Case no 20-051052SIV-HRET (Norwegian Supreme Court) (People v Arctic Oil). Unofficial translation available at www​.klimasøksmål​.no/​wp​ -content/​uploads/​2021/​01/​judgement​_translated​.pdf, last accessed 28 February 2022. 21 The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135). Available at: https://​deeplink​.rechtspraak​.nl/​uitspraak​?id​=​ECLI:​NL:​RBDHA:​2015:​ 7196.

Transnational litigation networks: agents of change in the global constitutional order  383 of the global greenhouse gas emissions, had benefited from the use of fossil energy and that therefore it has an obligation to take the lead in tackling climate change.22 The District Court of Appeal upheld the District Court’s judgment and followed Urgenda’s arguments in basing its decision on Article 2 (‘Right to life’) and Article 8 (‘Right to family life’) of the ECHR. It also made several other references to other bodies of transnational law, such as constitutional rights, the sustainability principle embodied in the UNFCCC, EU emissions reduction targets, or the principle of fairness. However, it did not consider non-Dutch residents as applicants. It continues to follow Urgenda’s argument that there is a ‘serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’,23 invoking Articles 2 and 8 ECHR. In its decision, the Court followed Urgenda’s argumentation, which also relied on the European Court of Human Rights’ (ECtHR) case law. Additionally, it argued that a country with only a small contribution to global emissions could not evade its responsibility to contributing a fair share to global emission targets by arguing its emissions only had a small impact on global warming (Backes and van der Veen 2020). In 2019, the District Court’s ruling was upheld by a ruling of the Dutch Supreme Court. By engaging in the litigation process, the claimants engaged in normative contestation of global norms as they seek to fight against climate change by means of a formal practice of norm validation (Wiener 2018: 43). Case law is a practice of norm validation that entails validity claims regarding formal documents. In the Urgenda Case, the claimants produced, and caused the production of documents by other stakeholders, several of these documents: discovery, judgments, legal analysis and development of legal argument. Thereby, they were effectively able to validate their ‘normative baggage’ with the Court’s decision with their formal practice of norm validation of litigation, which then is reproduced by different types of judicial publications. This entails not only the court documents themselves, but also related legal analysis (Spier 2020; Nollkaemper and Burgers 2020; de Graaf and Jans 2015; Verschuuren 2019), development of legal argument (Burgers and Staal 2019; Antonopoulos 2020), previous judgments such as the invoked ECtHR cases such as Öneryildiz v Turkey, Budayeva et al v Russia, and Kolyadenko et al v Russia,24 or legal commentary (Wegener 2019; Lambrecht and Ituarte-Lima 2016; Setzer and van Berkel 2019). The knowledge production caused by this contestation is visible: On 16 February 2021, the key word ‘Urgenda’ shows just shy of 5,000 (4,960) results in google scholar for this term. As Urgenda is an artificial term consisting of the word ‘agenda’ and ‘urgent’ (Spier 2020), this word is very unlikely to have been used in circumstances disconnected from the Urgenda Case. While developing its own argumentation, the Court heavily relies on Urgenda’s submissions and arguments. Without a strict legal mandate to do so, it relied on several principles of transnational law and invoked case law of the ECtHR in order to develop legal arguments for granting Urgenda’s request, meaning it was itself engaging in this practice of formal norm The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135). Available at: https://​deeplink​.rechtspraak​.nl/​uitspraak​?id​=​ECLI:​NL:​RBDHA:​2015:​ 7196. 23 The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135). Available at: https://​deeplink​.rechtspraak​.nl/​uitspraak​?id​=​ECLI:​NL:​RBDHA:​2015:​ 7196. 24 Öneryildiz v. Turkey, Judgment of 30 November 2004, [2004] ECHR; Budayeva and Others v. Russia, Judgment of 20 March 2008, [2008] ECHR; Kolyadenko and Others v. Russia, Judgment of 28 February 2012, [2012] ECHR. 22

384  Handbook on global constitutionalism validation. With this, the court reaches beyond the usual grounds of decision-making limited to statutory mandates (Sabin Center for Climate Change Law 2022). In the strict legal sense, there is no obligation on precedence on the Dutch Supreme Court to rely on ECtHR case law, or even to develop it further (Pedersen 2020: 233). As Pedersen notes, this reach beyond legal mandates ‘is also at play in the case law from the ECtHR itself where the Court over the years has relied extensively on legal developments in international environmental law and EU environmental law in the attempt to define its own case law’ (Pedersen 2020: 233). The Court hence engaged with the claimants in the formal practice of norm validation. Urgenda can be viewed as a precedent-setting case because its main human rights argument can be applied to all regions with a Human Rights Convention (Yoshida and Setzer 2020). This ‘rights-turn’ can be observed in a number of recent important climate cases such as the (until now) unsuccessful cases of Juliana et al v United States,25 in which the claimants relied on the United Nations Convention on the Rights of the Child (Friedman 2019), and the recent The People vs Arctic Oil in Norway, in which the Court acknowledged that the Norwegian constitution grants citizens and organizations the right to sue the state if its policies damage the environment (Duffy and Maxwell 2020; Gociu and Roy 2021). This results in interconnected webs of legal arguments. What these cases have in common is that the normative contestation of climate change regulations in different jurisdictions is largely based on human rights claims while also relying on climate science to validate their arguments (Kotzé 2021: 1432). One case that stands out is Neubauer v Germany,26 in which the German Constitutional Court ruled in an innovative judgment that Germany’s Climate Protection Act of December 2019 is not sufficient to meet Germany’s obligations to fight climate change. The Court based its ruling on the principle of sustainable development and developed the notion of intra- and inter-generational equity, which require defined and equitable climate change countermeasures (Bäumler 2021; Kotzé 2021: 1432). In the Urgenda judgment as well as in many other mentioned climate litigation cases, the claimants and courts develop new arguments based on human rights and constitutional law (Peel and Osofsky 2018; Sharp 2019). The contestation of climate change regulations hence uses the ‘rights-turn’ as a facilitating element due to the normative opportunity structure (Wiener 2018: 28) of human rights claims, which can be applied in many jurisdictions across the world. In addition, judges are increasingly open to citing and applying international law and case law from other jurisdictions (Novak 2020: 174), such as the District Court of Appeals’ invocation of ECtHR case law in the Urgenda Case. Networking capacities This section will describe social norm-validating practices around the Urgenda Case involving network capacities facilitating hybrid knowledge production and circulation. The Urgenda Foundation itself is a climate activist group operating in the Netherlands. It was founded by more than 800 Dutch citizens with the goal to work towards a more sustaina Juliana v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018). Bundesverfassungsgericht 2021. Constitutional complaints against the Federal Climate Change Act partially successful. Press release, 29 April 2021. Available at: https://​www​.bund​esverfassu​ ngsgericht​.de/​SharedDocs/​Pressemitteilungen/​EN/​2021/​bvg21​-031​.html. 25 26

Transnational litigation networks: agents of change in the global constitutional order  385 ble society – and to begin this work in the Netherlands (Spijkers 2020). After the initial success of the Urgenda Case, it also has created its own ‘CLN, a project established in 2016 through which the foundation aims to ‘support organisations, communities and individuals pursuing litigation aimed at compelling national governments to ramp up their climate mitigation ambition’.27 Dennis van Berkel, who also co-authored a journal article on climate change litigation with Setzer, is the director of the CLN.28 The Urgenda Foundation itself lists 22 jurisdictions all around the world that have one or more ongoing climate litigation case inspired by Urgenda, albeit the foundation does not detail how it supports these cases. In other publications, this support is described as legal assistance and grassroots political campaign support (Paiement 2020). Tessa Kahn, the co-founder and former director of the CLN, states in an interview that ‘[l]awyers will have to work hard to earn legitimacy among communities on the frontlines of climate change’ (Khan 2019), indicating this synergy with grassroots political organizations is a relatively new approach in which the legitimacy of the presence of lawyers has not yet been proven. As of 2021, Khan has founded another organization that aims for a fossil-free United Kingdom and draws heavily from community support and grassroots climate justice organizations, for example the UK’s Student Climate Network.29 Such climate litigation networks play an increasingly important role in circulating legal arguments, best practices, and in supporting and coordinating plaintiffs (Ciplet 2014; Peel and Lin 2019). This ‘networking effect’ of hybrid knowledge production and circulation through several organizations ultimately working towards the same goal is also visible outside of established environmental groups or climate litigation organizations. For example, James Hansen, a former IPPC report contributor, climate researcher and NASA scientist, has been an expert witness in climate cases since 2005. He started publicly supporting Urgenda in 2012 and then took the mobilization of the climate movement into his own hands. He is currently both a plaintiff and an expert witness in the Juliana Case in the United States (Schiermeier 2021; Harvey 2012). According to Wiener’s practices of norm validation, social validation is ‘generated through iterated social interaction in stable groups or communities’ (Wiener 2018: 46). The examples from the Urgenda Case illustrate a large, but loosely organized climate justice community in which a vast number of individuals engage in several related institutions and grass roots organizations. By organizing in loose networks, they create recurring and widely available common motives and narratives through which they are able to validate their contestation of climate change regulation norms. This also serves as a social validation practice within the community itself, as it makes climate change ‘real’ (Paiement 2020: 129). From research on other strategic litigation areas, it can be concluded that this pattern of globally operating, loose networks cooperating on the issues of their choice is defining for transnational litigation networks (Graser 2019: 11–12). In climate litigation cases, they play an important role ‘in fostering and supporting climate change litigation, as well as developing political campaigns the mobilise alongside their litigation activities’ (Paiement 2020: 125). With these practices of social norm validation, transnational litigation networks involve agents of normative change operating at multiple sites working towards a common goal, even if the

Urgenda Foundation. n.d. Global Climate Litigation. Available at: https://​www​.urgenda​.nl/​en/​ themas/​climate​-case/​global​-climate​-litigation/​. 28 Urgenda Foundation. n.d. Global Climate Litigation. Available at: https://​www​.urgenda​.nl/​en/​ themas/​climate​-case/​global​-climate​-litigation/​ 29 Uplift. 2022. Available at: https://​upliftuk​.org/​. 27

386  Handbook on global constitutionalism individual interpretations and arguments may differ from another. They are able to exchange best practices and legal know-how, and bundle their forces with environmental groups to create financial and personal capacities for the litigation proceedings (Zengerling, Aykut et al 2021: 91; Ciplet 2014; Peel and Lin 2019). As case studies suggest, there is a connection between successful climate litigation and social movements (Keller and Bornemann 2021). Other climate litigation organizations go beyond the networking capacities exhibited by the Urgenda Foundation and its stakeholders. For example, ClientEarth, a group that has supported and brought several law suits regarding the right to clean air, supports claimants in Budua, Uganda in their lawsuits against the Ugandan government for failing to protect its citizens against climate risks,30 and trains lawyers in China on legal strategies for air pollution cases.31 Because they are able to operate on multiple scales of global governance, they are able to transcend ‘different scales of global order’ (Zengerling, Aykut et al 2021: 91; Berman 2009; Tully 2016). Another transnational litigation network, the Bertha Foundation, has a programme with a network of strategic litigation law firms around the world to ‘host, train and mentor early-career lawyers … to hold governments and corporations to account alongside impacted communities’. Their mission statement is to build a ‘network of new and experienced social justice and movement lawyers, empowered by collaboration, exchange and solidarity’.32 As Wiener notes, social validation is usually a norm-validating practice that is dependent on social exclusion or inclusion, and therefore not accessible for all stakeholders equally (Wiener 2018: 46). In this case, transnational litigation networks circumvent this pain point entirely by their loose and, in principle, open-to-all organizational setup. Climate litigation may even provide structural support for creating new alliances and enhance existing climate litigation networks (Zengerling, Aykut et al 2021: 93; Wiener 2018; Paiement 2020).

NETWORKING NORMATIVE VALIDITY THROUGH INTERCONNECTED PRACTICES OF NORM VALIDATION Until now, research on climate litigation has rarely taken the litigants and litigators into account. Instead, the analytical focus is often on the judges or on the case as a whole (Paiement 2020: 129; Vanhala 2020) as the norm-generative dynamic. Exploring transnational litigation networks as well as their impact has only recently become a topic of interest (Graser and Helmrich 2019; Setzer and Vanhala 2019). A constructivist framework allows for an assessment of individual actors of normative change and the opportunity structure they have access to. The chapter has explored this opportunity structure with three key global resources of climate litigation: agenda-setting, case law and networking capacities. Using the Urgenda Case as a prominent example of climate change litigation, it was demonstrated that a framework assessing different practices of contestation can be used to trace the norm-validating

30 ClientEarth 2020. Landslide victims take Ugandan Government to court. ClientEarth Communications. Available at: https://​www​.clientearth​.org/​latest/​latest​-updates/​news/​landslide​-victims​ -take​-ugandan​-government​-to​-court/​. 31 ClientEarth n.d. What we do: Priorities. Air Pollution. Available at: https://​www​.clientearth​.org/​ what​-we​-do/​priorities/​air​-pollution/​. 32 Bertha Justice Foundation. n.d. Lawyers. Available at: https://​berthafoundation​.org/​lawyers/​.

Transnational litigation networks: agents of change in the global constitutional order  387 practices of normative change of transnational litigation networks. I argue that employing this constructivist approach to transnational litigation networks can contribute to a better understanding of the impact of transnational litigation networks because it allows to trace individual practices of norm validation in a formal, social and cultural context and thereby allows to comprehend the dynamics of normative change. By using the three distinct practices of norm validation by Wiener as a mode of analysis, the research is able to transcend traditional boundaries of scale (Hofius 2016: 15; Wiener 2018: 51–2) and is able to focus on the emergence of normative values within several layers of transnational law, which brings the agents of normative change and their impact to the foreground. Contestation as a mode of analysis adds a valuable layer to the analysis of transnational litigation networks in order to understand the thrive for the ‘ought’ of the law as well as to trace their related validity claims. Applying a constructivist framework underlines the flow of normative ideas and narratives and the importance of norms validation in order to create normative authority without a regime. The defining character of the practices of contestation in Urgenda is that they are predominantly proactive, as opposed to reactive contestation. In proactive contestation, agents critically engage with a norm ‘in order to clarify distinct meanings or agree on the means (instruments, mechanism, policies) that are required to implement the norm’ (Wiener 2020: 1). Thereby, they create their own frame of reference and hence, their own normative regime, which in turn could be used as claim validation in a future argument. Agents at multiple sites are able to build their own opportunity structures by networking contestation through building up ‘autonomous non-state social structures’ (Teubner 2012: 52) of shared normative values. Based on the applied model of contestation with normative validation practices in social, cultural and formal contexts, I propose an analytical framework that frames transnational litigation networks as normative communities (Osofsky and Koven 2008; Berman 2009: 226) with access to normative validation practices that propagate networked contestation. Similar to Perez theory on the establishment of private transnational authority, transnational litigation networks are seen as ‘a common set of actors is connected through multiple types of socially relevant ties’ (Perez 2020: 481). They engage in a ‘recursive process of external recognition’, which entails a ‘creation of validity through cross-referencing’ (Perez and Stegmann 2018: 143) – not of legal norms, but of ideas how the law ‘ought to be’, i.e., what states should do in order to prevent climate change. In that, they exert their constituent power within global constitutionalism and contribute to creating the global constitutional order. I argue that their networking capacities, in combination with agenda-setting and case law as global resources created by the contestation practices of transnational litigation networks, are a crucial part for the successful establishment of a valid normative claim. In that sense, the socially relevant ties are foregrounded by analysing the practices of normative validation. As Paiement describes it, litigation is ‘a form of shared narrative building’ (Paiement 2020: 141). The networked contestation exhibited by transnational litigation networks is focused on a three-folded strategy of normative validation: Cultural validation comes to the foreground in the form of agenda-setting: the sharing of opinions, establishment as scientific and academic experts. Media presence, but also the reproduction of the discourse in a legal and academic context are important factors. Social validation comes to the foreground as networking capacities, which facilitate hybrid knowledge production and circulation and have mobilization characteristics. Formal validation is rooted in references to positive law, which create networks of legal arguments (Pedersen 2020). The inclusion of formal validation as a contestation practice also allows to apply an additional doctrinal lens on the practice of formal validation,

388  Handbook on global constitutionalism i.e., an assessment of positive law. I argue that the networking nature of transnational litigation networks, which enables a faster proliferation of their arguments, legal know-how, and best practices (Ciplet 2014; Peel and Lin 2019), contributes a crucial building block of transnational law by means of their opportunity structure in specific forums. This networked contestation involving different practices of norm validation arises and can be empirically measured by means of Perez’s identifiers: cross-referencing of legal norms, indirect ties through affiliation, and direct institutional links (Perez 2020). As he argues, the density of these connections can be evaluated and contribute to a ‘joint ethos’ (Perez 2020: 486) that exposes norm-generative dynamics. This approach can be used to deeply explore the networked contestation of actors such as transnational litigation networks. As demonstrated in the section above, it is possible to trace individual contributions to normative change by means of different practices of contestation in a social, formal and cultural context. Doing so, it should be possible to make an assessment of the strength of the contestation, e.g., expressed in the cross-referencing, indirect ties through affiliation, and direct institutional links (Perez 2020). In addition, I argue that it is possible to trace the emergence and spread of normative values with this approach, which can contribute to a better understanding of the impact of strategic litigation. It could trace the emergence of a legal norm through the historical timeline by analysing cross-references and mutual attributions within contestation practices. It can also assess the general validity of the normative practices by assessing the number of references, as ‘each reference indicates (implicitly) the validity of the referenced’ (Perez 2020: 479). Importantly, positive law always stays an important focus of analysis. Networked contestation not only reveals the ‘Ought’ of the law for networks of actors of global normative change, but also makes it possible to trace single successful practices of contestation that contribute to the global normative order. By revealing the actors, connecting nodes in the network, and assessing the ‘thickness’ of the network, an empirical assessment can be made.

CONCLUSION Transnational litigation networks have developed distinct methods of validation for their normative contestation in order to achieve success. I propose to apply a normative theoretical framework based on viewing transnational litigation networks as actors being capable of creating normative institutions of networked constitutionalism through case law, network capacities and agenda-setting (Aykut, Wiener et al 2021: 45). With this toolbox, they are able to use norms as both structuring and socially constructed entities (Wiener 2018: 28). Transnational litigation networks are an increasingly relevant group of actors who manage to practice contestation in a proactive way by critically engaging with a norm and, as a result, sometimes exceed the normative power of courts, international treaties, corporations or governments. In this chapter, I have explored the motivation, history and body of research of transnational litigation networks and then applied a constructivist framework to the Urgenda Case in order to illustrate an assessment of climate litigation’s norm-generative resources. Some doctrinal legal scholars argue that ‘the sheer acceptance of a norm, or a perceived regularity in behaviour, can never in itself render a norm legally valid, because that would involve an impossible leap from Is to Ought’ (van Klink and Lembcke 2016, 217). I argue that transnational litigation networks are able to establish practices of norm validation via a network-like

Transnational litigation networks: agents of change in the global constitutional order  389 structure that entails cross-referencing and mutual attribution (Perez 2020). Their contestation practices in a social, cultural and formal context eventually can lead a norm to becoming legally valid, showing transnational litigation network’s abilities to make the leap from the Is to Ought. Based on these observations, I develop the concept of networked contestation to assess the norm-generative structure of these actors. In that, I apply Perez’s empirical focus on cross-referencing of legal norms, indirect ties through affiliation and direct institutional links (Perez 2020) to measure the network topology and dynamics of transnational litigation networks. This approach fits into global constitutionalism’s notion that ‘constituent power signals that constitutional orders are made, not found, and that their authorship of last resort lies with the people’ (Niesen, Chapter 22 in this Handbook). Climate litigation is an exceptionally well-researched area of transnational strategic litigation. Other litigation areas have received much less attention. There may be other practices of validation, or even entirely different strategies in achieving norm validation. Academics and litigation practitioners alike may benefit from the vast amount of analysis done in this area in order to spread these best practices to other areas of strategic litigation. With the approach of networked contestation, this chapter provides a solid framework of analysis that can contribute to the understanding of transnational litigation networks as agents of change in the global constitutional order.

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Transnational litigation networks: agents of change in the global constitutional order  391 Graser, Alexander and Christian Helmrich (eds). 2019. Strategic Litigation: Begriff und Praxis. Baden-Baden: Nomos. Hamann, Andrea and Hélène Ruiz Fabri. 2008. Transnational networks and constitutionalism. International Journal of Constitutional Law 6 (3-4): 481–508. Harvey, Fiona. 2012. Dutch government may face legal action over climate change. The Guardian (online), 14 November 2012. Available at: https://​www​.theguardian​.com/​environment/​2012/​nov/​14/​ dutch​-legal​-action​-climate​-change. Hilbink, Thomas. 2006. Constructing Cause Lawyering: Professionalism, Politics, & Social Change in 1960s America (31 January 2006). Available at: https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​ =​2417253. Hofius, Maren. 2016. Community at the border or the boundaries of community? The case of EU field diplomats. Review of International Studies 42 (5): 939–67. Hughes, Lesley. 2019. The Rocky Hill decision: A watershed for climate change action? J. Energy Nat. Resour. Law 37 (3): 341–51. Jacometti, Valentina. 2019. Climate change litigation: Global trends and critical issues in the light of the Urgenda 2018 Decision and the IPCC Special Report ‘Global Warming of 1.5 °C’. Global Jurist 20 (1). Janki, Melinda. 2020. Guyana: A first step towards climate litigation. Climate Law Blog, Sabin Center for Climate Change Law. 29 December 2020. Available at: http://​blogs​.law​.columbia​.edu/​ climatechange/​2020/​12/​29/​guyana​-a​-first​-step​-towards​-climate​-litigation/​. Kaleck, Wolfgang. 2019. Mit Recht gegen die Macht. In: A. Graser and C. Helmrich (eds), Strategic Litigation: Begriff und Praxis. Baden-Baden: Nomos, pp. 21–5. Keck, Margaret E. and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca: Cornell University Press (pages indicated are pdf pages). Keller, Seline, and Basil Bornemann. 2021. New climate activism between politics and law: analyzing the strategy of the KlimaSeniorinnen Schweiz. Politics and Governance 9 (2): 124–34. Khan, Tessa. 2019. Litigation is a powerful tool for holding those responsible for the climate crisis to account. TIME, 25 September 2019. Available at: https://​time​.com/​5686087/​courtroom​-climate​ -change​-litigation/​. Kotzé, Louis J. 2021. Neubauer et al. versus Germany: Planetary climate litigation for the anthropocene? German Law Journal 22 (8): 1423–44. Kruse, Katherine R. 2011. Engaged client-centered representation of the moral foundations of the lawyer-client relationship. Hofstra Law Review 39 (3): 577–94. Kuh, Katrina Fischer. 2019. The legitimacy of judicial climate engagement. Ecology Law Quarterly 46 (3): 731–64. Lambrecht J, Ituarte-Lima C. 2016. Legal innovation in national courts for planetary challenges: Urgenda v state of the Netherlands: District Court of The Hague, 24 June 2015, C/09/456689/ HA ZA 13-1396. Environmental Law Review 18 (1): 57–64. Liran, Amit. 2019. Holding the animal agriculture industry accountable for climate change: Merits of a public nuisance claim under California and Federal law. Villanova Environ. Law J. 30: 1–38. Lobel, Jules. 2003. Success Without Victory; Lost Legal Battles and the Long Road to Justice in America. New York: New York University Press. Marjanac, Sophie and Lindene Patton. 2018. Extreme weather event attribution science and climate change litigation: An essential step in the causal chain? Journal of Energy & Natural Resources Law 36 (3): 265–98. McCormick, Sabrina, Robert L. Glicksman, Samuel J. Simmens, LeRoy Paddock, Daniel Kim and Brittany Whited. 2018. Strategies in and outcomes of climate change litigation in the United States. Nature Climate Change 8 (9): 829–33. McGrath Chris. 2019. Urgenda appeal is groundbreaking for ambitious climate litigation globally. Environ. Plan. Law J. 36 (1): 90–4. Minnerop, Petra. 2019. Integrating the ‘duty of care’ under the European Convention on Human Rights and the science and law of climate change: The decision of The Hague Court of Appeal in the Urgenda case. Journal of Energy & Natural Resources Law 37: 1–31. Murcott, Melanie, and Emily Webster. 2020. Litigation and regulatory governance in the age of the Anthropocene: the case of fracking in the Karoo. Transnational Legal Theory 11 (1–2): 144–64.

392  Handbook on global constitutionalism Nollkaemper, André and Laura Burgers. 2020. A new classic in climate change litigation: The Dutch Supreme Court decision in the Urgenda Case. EJIL:Talk!, 6 January 2020. Available at: https://​ www​.ejiltalk​.org/​a​-new​-classic​-in​-climate​-change​-litigation​-the​-dutch​-supreme​-court​-decision​-in​ -the​-urgenda​-case/​. Novak, Andrew. 2020. Transnational Human Rights Litigation: Challenging the Death Penalty and Criminalization of Homosexuality in the Commonwealth. Cham: Springer. Osofsky, Hari M. 2010. The continuing importance of climate change litigation. Climate Law 1(1): 3–29. Osofsky, Hari M. and Janet Koven Levit. 2008. The scale of networks? Local climate change coalitions. Chicago Journal of International Law 8 (2): Article 4. Paiement, Phillip. 2020. Urgent agenda: How climate litigation builds transnational narratives. Transnational Legal Theory 11 (1-2): 121–43. Pedersen, Ole W. 2020. The networks of human rights and climate change: the state of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135). Environmental Law Review 22 (3): 227–34. Peel, Jacqueline and Jolene Lin. 2019. Transnational climate litigation: The contribution of the Global South. American Journal of International Law 113 (4): 679–726. Peel, Jacqueline and Hari M. Osofsky. 2018. A rights turn in climate change litigation? Transnatl. Environ. Law 7 (1): 37–67. Pepper, Stephen L. 1986. The lawyer’s amoral ethical role: A defense, a problem, and some possibilities. American Bar Foundation Research Journal 11 (4): 613–35. Perez, Oren. 2020. Transnational networks and the construction of global law. In: P. Schiff Berman (ed.), The Oxford Handbook of Global Legal Pluralism. Oxford: Oxford University Press. Perez, Oren and Ofir Stegmann. 2018. Transnational networked constitutionalism. Journal of Law & Society. Bar Ilan University Faculty of Law Research Paper No. 18-04, Available at: https://​ssrn​.com/​ abstract​=​3180540. Peters, Anne. 2015. ‘Global constitutionalism’. In M.T. Gibbons (ed.), The Encyclopedia of Political Thought, (Chichester, UK: Wiley-Blackwell) pp. 1484–7. Puetter, Uwe and Antje Wiener. 2009. The quality of norms is what actors make of it: Critical constructivist research on norms. Journal of International Law and International Relations 5 (1): 1–16. Purcell, Andrew. 2021. Yemeni drone strike victims take their case to Germany’s highest court. 23 March 2021. Available at: https://​reprieve​.org/​uk/​2021/​03/​23/​yemeni​-drone​-strike​-victim​-take​-their​ -case​-to​-germanys​-highest​-court/​. Ratner, Michael and Michael Smith. 2021. Moving the Bar: My Life as a Radical Lawyer. New York: OR Books. Reus-Smit, Christian. 2005. Constructivism. In S. Burchill et al (eds), Theories of International Relations. Basingstoke: Palgrave. Ruben, Albert. 2011. The People’s Lawyer: The Center for Constitutional Rights and the Fight for Social Justice, from Civil Rights to Guantanamo. New York: New York University Press. Sabin Center for Climate Change Law. 2022. Urgenda Foundation v. State of the Netherlands. Available at: http://​climatecasechart​.com/​climate​-change​-litigation/​non​-us​-case/​urgenda​-foundation​ -v​-kingdom​-of​-the​-netherlands/​. Sandholtz, Wayne. 2019. Human Rights Courts and Global Constitutionalism: Coordination through Judicial Dialogue. KFG Working Paper Series, No. 35, Berlin Potsdam Research Group ‘The International Rule of Law – Rise or Decline?’, Berlin, June 2019. Schiermeier, Quirin. 2021. Climate science is supporting lawsuits that could help save the world. Nature (online), 8 September 2021. Available at: https://​www​.nature​.com/​articles/​d41586​-021​-02424​-7. Setzer, Joana and Catherine Higham. 2021. Global trends in climate change litigation: 2021 snapshot. Policy Report. July 2021. Available at: https://​www​.lse​.ac​.uk/​granthaminstitute/​wp​-content/​uploads/​ 2021/​07/​Global​-trends​-in​-climate​-change​-litigation​_2021​-snapshot​.pdf. Setzer, Joana and Dennis van Berkel. 2019. Urgenda v State of the Netherlands: Lessons for international law and climate change litigants. LSE, Grantham Research Institute on Climate Change and the Environment. Online commentary, 10 December 2019. Available at: https://​ www​ .lse​ .ac​ .uk/​ granthaminstitute/​news/​urgenda​-v​-state​-of​-the​-netherlands​-lessons​-for​-international​-law​-and​-climate​ -change​-litigants/​.

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27. Human rights, sovereignty, and the use of force Sassan Gholiagha

INTRODUCTION International law strongly constrains the use of force as a means of global politics. The most authoritative formulation of this prohibition is found in the United Nations (UN) Charter. Article 2(4) explicitly prohibits the use of force, including the threat of the use of force, aiming to ensure a peaceful world. Yet, the Charter also accepts two situations in which the use of force is legal in global politics. First, states can exercise self-defence in situations of an armed attack (Article 51 UN Charter). Second, states may act collectively and employ measures including the use of force to maintain international peace and security if authorized by the UN Security Council (see Gray 2008 for a general overview). Wars and armed conflicts of various types are a constant feature of global politics. In the last decades, inner-state wars and conflicts have been the dominant type, with the number of inter-state wars being relatively low for some time (BICC et al 2019). But, when Russia attacked Ukraine on 24 February 2022, questions of inter-state wars and thus ius ad bellum have gained more attention again. At the time of writing, the war is ongoing, and its outcome is unclear. However, it is clear that individual human beings suffer, either as soldiers or civilians.1 Regarding ius ad bellum, I focus on situations where the UN Charter enables the use of force to protect individual human beings from mass atrocity crimes. As I will show, the idea that human rights protection at times requires the use of force is most prominently formulated in the Responsibility to Protect (R2P). More generally speaking, human rights protection constitutes a core principle or fundamental norm that constrains what actors can do in a ‘constitutional political and legal order’ (Lang and Wiener, Chapter 1 in this Handbook: p. 3; Besson, Chapter 23 in this Handbook). At the same time, the sovereignty of states and the fundamental norm of non-interference is also a fundamental norm in the UN Charter. As I will demonstrate in the following, these fundamental norms are constantly in tension. Building on the core assumptions that all constitutions contain enabling and constraining elements (Doyle, Chapter 32 in this Handbook, p. 461), I hold that the fundamental norms (see Wiener 2008 for this term) regarding the use of force can be analysed through the lens of global constitutionalism. The chapter employs the notion of global constitutionalism as a perspective that brings together politics and law and enables scholars to study ‘empirical facts and normative ideals’ (Lang and Wiener, Chapter 1 in this Handbook: p. 3). It discusses the use of force against the backdrop of the tension between sovereignty/non-interference and human rights protection. In the discussion, I consider both empirical developments and normative ideals formulated in the literature. In terms of empirical developments, I look at debates about humanitarian interventions in the 1990s and the development and application of R2P since the early 2000s. I will not discuss the Russian war against Ukraine in detail here. Whether R2P ought to play a role has been discussed for example on the Fresh Perspectives Blog of the European Centre for the Responsibility to Protect, available at https://​ecr2p​.leeds​.ac​.uk/​research​-2/​blog/​. 1

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396  Handbook on global constitutionalism In terms of normative ideals, I discuss whether R2P may be able to overcome the tension between sovereignty and non-interference on the one hand and the protection of human rights on the other. Furthermore, the Charter itself may provide a global constitution or a framework for an emerging global constitutional order (Fassbender 2008, 2009; Doyle, Chapter 32 in this Handbook). Thus, I ask whether R2P also contributes to this emerging constitutional order by providing a (potential) right to be protected. Such a right is not an empirical fact but certainly a normative ideal. As becomes evident from this description, the main focus of this chapter is ius ad bellum. Yet, given that a right to be protected remains a normative ideal, I will also briefly discuss ius in bello, looking at both International Humanitarian Law (IHL) and International Human Rights Law (IHRL) to illustrate how both bodies of law can and should play a role in protecting individuals in armed conflicts. The chapter begins by providing a critical discussion of existing literature in both International Relations and International Law on the question of this tension between sovereignty and non-interference on the one hand and human rights protection through the use of force on the other hand. I then discuss the literature on R2P as a complex norm (Welsh 2013), which can be understood as an attempt to reconcile the tensions between non-interference/ sovereignty and human rights protection. Following this section, I suggest that not only states can draw on the R2P norm to protect humans from mass atrocities, but that R2P also entails a strong individual dimension, i.e. it is part of an ongoing shift away from states as the primary actors of an emerging global constitutionalist order towards the individual human being (Gholiagha 2022: Chapter 6; Peters 2016: 236). In conclusion, I discuss whether R2P entails a right to be protected and turn to ius in bello to discuss how IHRL and IHL also provide protection.

SOVEREIGNTY VS HUMAN RIGHTS PROTECTION – AN UNRESOLVED TENSION After World War II, states signed the UN Charter with the aspiration that the horrors of two world wars would not be repeated, as the Charter’s preamble makes clear. Accordingly, states agreed on a set of fundamental norms enshrined in the Charter to achieve the goal of a peaceful resolution of conflicts. These fundamental norms are: working towards ‘respecting human rights’ (Article 1(3)); sovereign equality (Article 2(1)); the prohibition of the use of force (Article 2(4)) and the principle of non-interference except for actions authorized under Chapter VII (Article 2(7)). Under Chapter VII, the UN Security Council (hereafter UNSC or the Council) is authorized to use all necessary means, including force, to ensure international peace and security (Articles 39 and 43). In listing these fundamental norms of the UN Charter, it becomes apparent that the Charter contains an inherent tension between sovereignty and non-interference in internal affairs of the state on the one hand and ensuring respect for human rights on the other. Framed as a question, the tension reads: How should the international community react in cases where force was directed not against another member state but towards a state’s population or perhaps a specific group within a state? The answer to this question seems to be that in those cases, the international community faces a dilemma: Either violate the one set of norms protecting states or the other set of norms directed towards peace, security, and human rights protection (Brock 1999; Wheeler 2006: 42; Brock 2013; Gholiagha 2014; Peltner 2017; Stimmer and Wisken

Human rights, sovereignty, and the use of force  397 2019: 517). This tension was not a hypothetical issue, as events during the Cold War demonstrated. For example, massive human rights violations, amounting at times to genocide, took place within states such as Cambodia, East-Pakistan/Bangladesh and Uganda. In response, often neighbouring states, under the pretence of self-defence, intervened to prevent human rights violations (Wheeler 2002: 79, 89–100, 136; Smith 2010: 81–99; Rodley 2015: 781–3). Yet, it was with the end of the Cold War, the changes toward new wars (Kaldor 1999; Daase 1999) and a growing number of inner-state wars, ethnic conflicts, and violence against state’s populations or certain groups that it became clear that the biggest threat for human rights and the biggest challenge to ensure a peaceful world had shifted from intra-states war to inner-state wars and conflicts short of war (BICC et al 2019: 49). So what should be done in situations that would pass the threshold of the use of force prohibition (see ICJ 1984 for an authoritative decision on this threshold) but happened to occur within a state? The underlying cause of the problem was that – primarily due to the historical context of the Charter’s development – its central norms are state-centred and focus on intra-state conflicts. However, when it came to inner-state disputes, including conflicts with armed non-state actors, the rules could not easily be transferred as states shielded behind the norms of non-interference and sovereignty. This was also the case when those actions caused human rights violations. While between 1945 and 1990 very little happened in terms of actions to protect populations from mass atrocity crimes, the 1990s saw a fundamental change when it came to Chapter VII operations and debates about the use of force. From the 1990s onwards, military interventions with the explicit aim to protect human rights for situations within a state were authorized by the UN Security Council; 1991 saw the first instance of a shifting policy with Resolution 688 demanding the protection of the Kurdish population in Iraq (UNSC 1991; Wheeler 2002: 139–71). And only a year later, UNSC members stated in Resolution 767 that the situation ‘constitutes a threat to international peace and security’ (UNSC 1992a). In using this phrase, the UNSC clarified that situations within a state could also constitute a threat to international peace and security, thereby extending its reach to inner-state conflicts (see also Tomuschat 2014: 17). Operation Restore Hope in Somalia, authorised through Resolution 794 (UNSC 1992b), illustrated that ‘humanitarian claims were being advanced and legitimated by members as justification for the use of force’ (Wheeler 2002: 185). As it is well known, the operation in Somalia ended in a disaster with the so-called Battle of Mogadishu, with hundreds of civilians killed and the death of 18 US soldiers (Wheeler 2002: 188–200). The events in Somalia directly affected the international communities reaction or, better, lack thereof, to the genocide in Rwanda in 1994. It was primarily a lack of political will that was the underlying reason for the international communities inaction (Smith 2010: 179). A quick and robust response might have prevented the genocide (Wheeler 2002: 209–19). However, when outside help arrived – in the form of a French operation and later a UN Mission this was ‘too little too late’ (Wheeler 2002: 227–35; Smith 2010: 173–6). But as Karen Smith has shown in her work, it was not only the lack of political will but also the unwillingness of naming the situation a genocide out of fear that such a statement would activate legal obligations under the Genocide Convention (Smith 2010: 154–67). And a year later, the massacre of Srebrenica demonstrated again that the international community’s willingness to rely on the use of force if necessary to protect human rights remained limited (Smith 2010: 123–30).

398  Handbook on global constitutionalism Along with these changes in terms of actions, scholars also observed a shift regarding the legitimation of these operations. While, as mentioned above, pre-1990s’ justifications for the use of force in cases of what were de facto military operations to protect human rights had been primarily justified on the grounds of self-defence, this changed from the 1990s onwards. The justification shifted to humanitarian arguments and scholars coined the term ‘humanitarian intervention’ (Holzgrefe and Keohane 2003), with constructivist scholars identifying an ‘expansion of humanity’ (Finnemore 1996: 170). It seemed that sovereignty was no longer an impenetrable shield (von Arnauld 2009: 16). The 1990s had seen both success and failure in the face of severe human rights violations and mass atrocity crimes. However, any operations and interventions always had been authorized by the UNSC. This fact changed when in 1999 NATO intervened in the Kosovo conflict (NATO 1999b, 1999a), using force to protect the civilian population in Kosovo without the Council’s authorization. Unfortunately, I do not have the space to outline the debates about Kosovo in detail. However, in a nutshell, NATOs actions remained contested, were undoubtedly illegal but deemed legitimate by some (Habermas 1999; Wheeler 2000; Independent International Commission on Kosovo 2000; Lang Jr. 2009; Brock 2013; Nuñez-Mietz 2018). On a more abstract level, the events of the 1990s demonstrated how the international community struggled to reconcile fundamental norms: human rights protection and the prevention of mass atrocity crimes on the one hand and norms of sovereignty and non-interference on the other hand. And part of the struggle remained the question of the appropriate ways to use force in such situations. Lothar Brock has described this inherent tension as a fractured dualism of state and human rights law (Brock 1999: 323–4; see also Cohen 2008). Put differently, the inherent tension between sovereignty and human rights protection and the question of how and when the use of force was appropriate remained unsolved on the eve of the twenty-first century. In 2001 the Canadian-sponsored International Commission on Intervention and State Sovereignty (ICISS) published a report entitled ‘The Responsibility to Protect’ to provide answers on how to overcome this tension and how to resolve the fragmented dualism between human rights protection and sovereignty (ICISS 2001). The following section discusses R2P from its inception in 2001 to current debates about its application, nature and status in global politics and international law.

R2P: SOLVING THE TENSION? There is no need to retell R2P’s development in detail. Others have done this skilfully (Bellamy 2006, 2009, 2011a; Thakur 2016; Welsh 2016). To briefly recall, following the ICISS report in 2001 (ICISS 2001) and some years of NGO advocacy work, the heads of states and governments included R2P in a shortened, and some would say, watered-down (Weiss 2014: 15) version in the UN 2005 World Summit Outcome Document (United Nations 2005). In two paragraphs, the central ideas of R2P were included: First, all states bear a responsibility to protect their populations from war crimes, crimes against humanity, ethnic cleansing, and genocide – or in short, mass atrocity crimes. Second, should a state ‘manifestly fail’, the international community should act through the UN Security Council. These acts could manifest in the form of assistance or, if everything else fails, through the use of force under Chapter VII. Decisions to act under Chapter VII were to be taken on a case-by-case basis (United Nations 2005: paras 138–9).

Human rights, sovereignty, and the use of force  399 Since 2005, R2P has been established in global politics but remains heavily contested regarding the meaning actors attach to it and when, how, and where it should be applied. There is a plethora of literature on these questions (some examples of recent work include Welsh 2019a; Staunton and Ralph 2020; Hunt and Orchard 2020) to which the interested reader can turn. In the remainder of this section, I want to focus on R2P’s nature as a norm and its place in the context of global constitutionalism (Tacheva and Brown 2015). I argue that conceptualizing R2P as a norm, understood as both a process and a thing (Krook and True 2012), allows thinking about R2P as a soft institution (Orchard and Wiener 2021: 6) of an emerging global constitutional order. Over the last 20 years, scholars attempted to grasp the nature of R2P, asking whether it should be understood as a concept, an idea, a principle or a norm. I, like many scholars, see it as a norm. Classically, norms have been understood as ‘collective expectations for the proper behaviour of actors with a given identity’ (Katzenstein 1996: 5). While identity is a core concept in constructivism (Wendt 1992; Onuf 2013: 75), more critical research has questioned the ideas about a given identity (Zehfuß 2001; Vetterlein and Wiener 2013; Gholiagha et al 2020: 294), has pointed to the need to take values into account (Winston 2018), and most importantly has established that norms are inherently contested (Wiener 2007, 2018) with their meaning being subject to change depending on the context and the actors (Wiener 2009; Gholiagha et al 2021). Bringing together these more critical approaches to norms and the aforementioned understanding of norms as both processes and things (Krook and True 2012; Orchard and Wiener 2021) with constructivist research on R2P, I take up Jennifer Welsh’s suggestion to understand R2P as a complex norm as it entails several interconnected normative prescriptions (Welsh 2013). As Jennifer Welsh notes: R2P in its three-pillar form thus represents what I call a ‘complex’ norm, containing more than one prescription. This complex structure also creates a situation in which the breach of one of the components of R2P (failure on the part of a national government to protect its population) is meant to act as a trigger for fulfilment of another component (the international community’s remedial role in protecting) (Welsh 2013: 384).

As I have demonstrated elsewhere in detail, such a conceptualization paired with a critical constructivist conception of norms allows us to understand better R2P’s application or non-application in different settings (Gholiagha 2022, 2015). Here I want to focus on another question – whether R2P has contributed to overcoming the tension between human rights law and the right of states regarding sovereignty and non-intervention, especially focusing on the use of force (Moe and Geis 2020: 395). This insight is important because the answer to this question tells us something about R2P’s potential effect on an emerging global constitutional order. Many scholars have assessed R2Ps’ effectiveness in preventing mass atrocity crimes, and they have come to vastly different conclusions. While some have announced the death of R2P (Chandler 2015) or see it as something hollowed out (Hehir 2018), others maintain that it does have positive effects, although they readily admit that it is far from perfect (Bellamy 2015; Bellamy and McLoughlin 2018). As a constructivist norms researcher, my answer lies in the middle. As Uwe Puetter and Antje Wiener rightly argued over a decade ago, ‘norms are what actors make of them; and we would add that they are as “good” (read: just, fair and legitimate) as what actors make them out to be’ (Wiener and Puetter 2009: 4). In this sense, looking only at the norm itself says too little

400  Handbook on global constitutionalism about success or failure. Instead, we need to study whether actors rely on it to solve existing problems or refer to R2P when they establish and justify the appropriate behaviour in a specific situation as a specific actor (March and Olsen 1989, p. 26). Agency matters. In this regard, the debate surrounding the intervention in Libya in 2011 was a straightforward litmus test for R2P. While there has been considerable debate about the effect of R2P on Libya and the UNSC decision (Bellamy 2011b; Kurtz and Rotmann 2016; Pattison 2017), references to R2P can be identified in the debates of the UNSC (Gholiagha and Loges 2020). Of course, the aftermath of the intervention raised a lot of justified critiques, including the regime change that the NATO support for the opposition forces against Ghaddafi led to (Bellamy 2014; Akbarzadeh and Saba 2019; Malito 2019). In the penultimate section, I now return to conceptual ideas about R2P and discuss the individual human beings’ position in the discourse on R2P.

THE INDIVIDUAL HUMAN BEING IN R2P R2P can potentially change the relationship between sovereignty and human rights protection as states can draw on it to balance these two fundamental norms in global politics and authorize the use of force to ensure protection from mass atrocity crimes. Thus, it is often understood and used by states and international institutions with an exclusive state membership system, such as the UN Security Council. By moving away from states and international institutions, I want to shift towards the individual human being in the discourse on R2P. To this end, it is worthwhile to return to the origins of R2P briefly. In 1999, on the eve of a UN General Assembly meeting, then-Secretary General Kofi Annan published an op-ed in the Economist entitled ‘Two Concepts of Sovereignty’ (Annan 1999). Annan criticized the international community for both the inaction in Rwanda as the genocide could take place unhindered and the actions in Kosovo, for he feared that it might jeopardize the international security system in place (Annan 1999: 81). However, Annan also juxtaposed state sovereignty with individual sovereignty, a shorthand for individual rights. And while Annan’s suggestion to try to reconcile state sovereignty and individual sovereignty was a central motivation for establishing the ICISS, the idea of individual sovereignty did not resurface in the ICISS report. And while Annan himself later was not happy about the choice of the term (Evans 2008: 38, 2008: 38), it draws attention to what is at the core of R2P: the protection of the individual human being. Feminist scholars such as Christine Sylvester have rightly criticized International Relations scholarship for studying violence and war only on the systematic or state level (Sylvester 2013b: 1–2), calling for scholars to consider the personal experience of war (Sylvester 2013a: 619–20). In the context of R2P, the call for the focus on individual experience raises essential questions on the individual human being’s position in the discourse on R2P (Gholiagha 2022: Chapter 6 offers a detailed discussion on this question). Focusing on the individual human being in the context of the prohibition of the use of force and R2P may strike readers as odd, given that these are norms that are aimed at states. Yet, many scholars agree that R2P is about protecting individuals (Hehir 2012: 189; Marlier and Crawford 2013: 410; Luck 2015: 501–2; Peters 2016: 236–7; Welsh 2019b: 14). And of course, the victims of mass atrocity crimes are individuals (Rome Statute of the International Criminal Court, 1998: Articles 7–8), even in the case of a crime such as genocide, which targets groups (UNGA 1948; Lee 2010: 335–6, 341–2; Macleod 2012: 197). Furthermore,

Human rights, sovereignty, and the use of force  401 Lauren Wilcox has rightly pointed out that R2P produced three ‘subjects’, ‘a subject to be saved, a subject that can do the saving, and an inhuman subject that can be killed in order to save others’ (Wilcox 2015: 174; see also Dunford and Neu 2019: 1087 on civilian casualties and other negative effects of interventions). In this context of protecting human beings as a core part of R2P, scholars have identified ‘human-centric justifications’ for interventions (Teitel 2011: 35), reference to the ‘rights of vulnerable people’ (Weiss 2014: 9), and a focus on the ‘defense of others, namely, the persons who are victims of unjustified violence by their own governments’ (Téson 2014: 63, emphasis removed). Yet, what is less clear is what follows from R2P for the individual human being to be protected in terms of rights. In the concluding section, I now turn to this issue by asking whether R2P provides individuals with a right to be protected? In addition, I offer a brief discussion of how protection in situations of war can be provided through IHRL and IHL.

CONCLUSION – TOWARDS A RIGHT TO BE PROTECTED? R2P has undoubtedly changed the landscape of global politics. It has changed how actors discuss mass atrocity crimes, and it has opened up the possibility for action – although it does not guarantee meaningful action. As I have tried to illustrate, R2P has become part of an emerging global constitutional order and can be understood as part of the package of both soft and hard institutions2 that have strengthened the rights of individual human beings, that are part of the ‘humanisation of security’ (Bellamy 2016) and the ‘humanisation of global politics’ (Gholiagha 2022). The question that arises from this development and which I want to answer by way of conclusion is whether R2P entails a right to be protected. When protests erupted in Myanmar against the military junta in 2021, protesters painted R2P in bold letters on the streets and held up signs saying ‘Welcome R2P in Myanmar’.3 R2P thus offers civilian populations the possibility to claim a right to be protected from mass atrocities, given the responsibility of the state and the international community to do so. But is there an actual right to be protected in the legal sense? I turn to Anne Peter’s work Beyond Human Rights (Peters 2016) for this question. To begin with, she suggests differentiating between ‘simple’ rights and human rights as two groups of individual rights (Peters 2016: 436). She notes, and I follow her in that assessment, that R2P signals a shift ‘towards the needs, and possibly even the rights of the individual’ (Peters 2016: 236). For Peters, looking at human rights, R2P does not create obligations to intervene but rather ‘a procedural obligation to justify non-intervention, especially an obligation of the permanent members of the Security Council to justify their veto in that body’ (Peters 2016: 240). But what can R2P provide regarding the ‘possible rights of the individual’ Anne Peters (2016: 236) speaks of? Here, returning to R2P’s complex structure identified by Jennifer Welsh (Welsh 2013), which I discussed above, is helpful. Parts of R2P provide obligations to the states and the international community; who is to be protected is also an integral part of the norm. The fact that populations are to be protected from mass atrocity crimes (United Nations 2 The International Criminal Court, the Human Rights Council and the growing body of human rights treaties with their instruments to allow individual petitions are all examples for hard institutions. 3 See https://​www​.​internatio​nalaffairs​.org​.au/​australianoutlook/​the​-responsibility​-to​-protect​-the​ -people​-of​-myanmar/​.

402  Handbook on global constitutionalism 2005: paras 138–9) indicates that R2P is not about the protection of a specific group such as citizens or a legally defined group such as civilians, but simply refers to all individual human beings who happen to live within a state’s territory. And if one reads closely Resolution 1973 on Libya and R2P, R2P also seems to extend to foreign nationals who are present at the time (e.g. UNSC 2011: 2). R2P thus provides grounds for a right to be protected from mass atrocity crimes independent of the individual human beings’ nationality or status, simply by being present within a state’s territory. As Peters rightly notes, no direct legal obligation for other states to intervene stems from such a right, but she identifies a political and moral responsibility to do so (Erskine 2003, 2008; on responsibility in global politics see Hansen-Magnusson and Vetterlein 2020, 2021). And it gives grounds for the protection of individual rights ex-post through the International Criminal Court under whose (complimentary) jurisdiction mass atrocity crimes fall (Rome Statute of the International Criminal Court 1998), although some scholars have noted that the relationship between R2P and the International Criminal Court is not without problems (Ainley 2015; Kersten 2018). As mentioned at the outset, the chapter’s focus on the use of force, human rights protection, and sovereignty relates primarily to ius ad bellum issues: When and under which conditions is the use of force appropriate? The question of a right to be protected shifts the focus towards ius in bello, the laws that apply in situations of war and armed conflict. Any situations in which force is used leads to suffering. The laws of war codified, inter alia, in the Geneva Conventions and are usually referred to as IHL, provide rules to limit suffering, make war more humane (Wagner 2014: 1409), and protect individuals (Peters 2016: 194). IHL provides norms about who can and who cannot be attacked and the limits of an attack. These norms are formulated in the principles of distinction and proportionality: The principle of distinction requires that parties to armed conflict distinguish between civilian populations and objects, and military objectives. … The principle of proportionality prohibits an attack if the incidental civilian harm is excessive in relation to the concrete and direct military advantage anticipated by the attack (Grut 2013: 10).

Those principles and IHL more generally provide protection from excessive force or direct attacks against civilians in situations of armed conflicts. Yet, debates have shifted to whether and, if so, to what extent and how IHRL should also apply in situations of armed conflicts. One area where this has been discussed widely is the use of drones, especially in the context of US drone strikes outside of war (Dill 2015; Gregory 2015; Brookman-Byrne 2017). On a more general level, in armed conflicts, both IHRL and IHL apply, although IHRL as lex specialis prevails in situations of conflicts between both bodies of law (ICJ 1996; Schmitt 2013: 91). The right to life provides a good illustration of this point. While enshrined in IHRL, as Kevin J. Heller notes, it is not absolute: ‘All major IHRL conventions protect the right to life. That right, however, is not absolute: individuals are only protected against being “arbitrarily” killed. Killing an individual is not arbitrary as long as the use of lethal force was both proportionate and necessary’ (Heller 2013: 113). In sum, both bodies of law provide a certain degree of

Human rights, sovereignty, and the use of force  403 protection for individuals in war, depending on their role as civilians or combatants, but they must be applied together.4 Where does this leave us regarding the emergence of a global constitutional order? On the level of empirical facts, both IHRL and IHL protect individuals in situations of armed conflicts. Here we find well-established and explicit norms, ensuring a minimum standard of protection, at least in principle. Violations of these norms occur frequently, but they are recognized by others as such, thus upholding the validity of the norms. As Luke Glanville rightly notes: ‘We can recognise the impact of a norm both in instances of compliance and violation’ (Glanville 2016: 189). Furthermore, R2P provides the international community with a tool to assist states and, if necessary, take over the responsibility to protect populations from mass atrocities. R2P certainly has become an important norm in that emerging order as it enables states and international institutions to mediate between the fundamental norms of sovereignty and non-interference on the one hand and human rights protections on the other. In addition, R2P guides actors in situations when actors debate the authorization of the use of force. Finally, on the level of normative ideals, R2P opens up the possibility for individual rights protections on the international level. Whether and when this normative ideal might be fulfilled lies in the realm of speculation, although a glance at the news certainly leaves one with the desire and hope that it ought to be fulfilled sooner than later.

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There is much to say about the combatant/civilian distinction, especially how it has been blurred in more modern forms of conflict (Sanders 2014). An excellent analysis that also takes into account how both gender and sex matter for the distinction is provided by Hellen Kinsella (2011). 4

404  Handbook on global constitutionalism BICC, HSFK, IFSH, and INEF. 2019. ‘Vorwärts in die Vergangenheit? Frieden braucht Partner – Friedensgutachten 2019.’ https://​www​.friedensgutachten​.de/​user/​pages/​04​.archiv/​2019/​02​.ausgabe/​ friedensgutachten​_2019​_web​.pdf. Brock, Lothar. 1999. ‘Normative Integration und kollektive Handlungskompetenz auf internationaler Ebene.’ Zeitschrift für Internationale Beziehungen, 6 (2): 323–47. Brock, Lothar. 2013. ‘Dilemmata des internationalen Schutzes von Menschen vor innerstaatlicher Gewalt. Ein Ausblick.’ In Christopher Daase and Julian Junk (eds), Normative Erwartungen und Politische Praxis (‘Internationale Schutzverantwortung: Normative Erwartungen und Politische Praxis’). Special issue, Die Friedenswarte: Journal of International Peace and Organization, 88 (1–2): 163–85. Brookman-Byrne, Max. 2017. ‘Drone use “Outside Areas of Active Hostilities”: An examination of the legal paradigms governing US covert remote strikes.’ Netherlands International Law Review, 64 (1): 3–41. DOI:10.1007/s40802-017-0078-1. Chandler, David. 2015. ‘The R2P is dead, long live the R2P: The successful separation of military intervention from the responsibility to protect.’ International Peacekeeping, 22 (1): 1–5. Cohen, Jean L. 2008. ‘Rethinking human rights, democracy, and sovereignty in the age of globalization.’ Political Theory, 36 (4): 578–606. Daase, Christopher. 1999. Kleine Kriege – Große Wirkung: Wie unkonventionelle Kriegführung die internationale Politik verändert. Baden-Baden: Nomos. Dill, Janina. 2015. ‘The informal regulation of drones and the formal legal regulation of war.’ Ethics & International Affairs, 25 (1): 51–8. Dunford, Robin and Michael Neu. 2019. ‘The Responsibility to Protect in a world of already existing intervention.’ European Journal of International Relations, 25 (4): 1080–102. DOI:10.1177/1354066119842208. Erskine, Toni. 2003. ‘Making sense of “responsibility” in international relations.’ In Toni Erskine (ed.), Can Institutions Have Responsibilities, pp. 1–16. Houndsmill: Palgrave Macmillan. Erskine, Toni. 2008. ‘Locating responsibility: The problem of moral agency in international relations.’ In Christian Reus-Smit and Duncan Snidal (eds), The Oxford Handbook of International Relations, pp. 699–707. Oxford: Oxford University Press. Evans, Gareth J. 2008. The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All. Washington, DC: Brookings. Fassbender, Bardo. 2008. ‘“We the Peoples of the United Nations” – Constituent power and constitutional form in international law.’ In Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism, Constituent Power and Constitutional Form, pp. 269–90. Oxford: Oxford University Press. Fassbender, Bardo. 2009. ‘Rediscovering a forgotten constitution: Notes on the place of the UN Charter in the international legal order.’ In Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World? pp. 133–48. Cambridge: Cambridge University Press. Finnemore, Martha. 1996. ‘Constructing norms of humanitarian intervention.’ In Peter J. Katzenstein (ed.), The Culture of National Security. Norms and Identity in World Politics, pp. 153–185. New York: Columbia University Press. Gholiagha, Sassan. 2014. ‘Die Responsibility to Protect und Souveränität.’ In Christian Volk and Friederike Kuntz (eds), Der Begriff der Souveränität in der transnationalen Konstellation, pp. 198–214. Baden-Baden: Nomos. Gholiagha, Sassan. 2015. ‘To prevent “future Kosovos and future Rwandas”: A critical constructivist view on the Responsibility to Protect.’ International Journal of Human Rights, 19 (8): 1074–97. Gholiagha, Sassan. 2022. The Humanisation of Global Politics: International Criminal Law, the Responsibility to Protect, and Drones. Cambridge: Cambridge University Press. Gholiagha, Sassan and Bastian Loges. 2020. ‘Telling the story of R2P: The emplotment of R2P in the UN Security Council’s debates on Libya.’ In Charles T. Hunt and Phil Orchard (eds), Constructing the Responsibility to Protect: Contestation and Consolidation, pp. 69–88. Abingdon, Oxon: Routledge. Gholiagha, Sassan, Anna Holzscheiter and Andrea Liese. 2020. ‘Activating norm collisions: Interface conflicts in international drug control.’ Global Constitutionalism – Human Rights, Democracy and the Rule of Law, 9 (2): 290–317.

Human rights, sovereignty, and the use of force  405 Gholiagha, Sassan, Hannes Hansen-Magnusson and Maren Hofius. 2021. ‘Meaning-in-use: Zum Verhältnis von Normativität und Normalität in der Normenforschung.’ In Stephan Engelkamp, Katharina Glaab, and Antonia Graf (eds), Kritische Normenforschung in Deutschland. Neue Wege in den Internationalen Beziehungen, pp. 221–49. Baden-Baden: Nomos. Glanville, Luke. 2016. ‘Does R2P matter? Interpreting the impact of a norm.’ Cooperation and Conflict, 51 (2): 184–99. DOI:10.1177/0010836715612850. Gray, Christine. 2008. International Law and the Use of Force, 3rd edition. Oxford: Oxford University Press. Gregory, Thomas. 2015. ‘Drones, targeted killings, and the limitations of international law.’ International Political Sociology, 9 (3): 197–212. Grut, Chantal. 2013. ‘The challenge of autonomous lethal robotics to international humanitarian law.’ Journal of Conflict and Security Law, 18 (1): 5–23. DOI:10.1093/jcsl/krt002. Habermas, Jürgen. 1999. ‘Bestialität und Humanität: Ein Krieg an der Grenze zwischen Recht und Moral.’ Die ZEIT, 29.04.1999. Hansen-Magnusson, Hannes and Antje Vetterlein (eds). 2020. The Rise of Responsibility in World Politics. Cambridge: Cambridge University Press. Hansen-Magnusson, Hannes and Antje Vetterlein (eds). 2021. The Routledge Handbook on Responsibility in International Relations. Abingdon: Routledge. Hehir, Aidan. 2012. The Responsibility to Protect: Rhetoric, Reality, and the Future of Humanitarian Intervention. Houndsmill: Palgrave Macmillan. Hehir, Aidan. 2018. Hollow Norms and the Responsibility to Protect. Cham, Switzerland: Palgrave Macmillan. Heller, Kevin J. 2013. ‘“One Hell of a Killing Machine”.’ Journal of International Criminal Justice, 11 (1): 89–119. Holzgrefe, Jeff L. and Robert O. Keohane (eds). 2003. Humanitarian Intervention: Ethic, Legal and Political Dilemmas. Cambridge: Cambridge University Press. Hunt, Charles T. and Phil Orchard (eds). 2020. Constructing the Responsibility to Protect: Contestation and Consolidation. Abingdon, Oxon: Routledge. ICISS. 2001. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty. Ottawa: International Development Research Centre. Independent International Commission on Kosovo. 2000. The Kosovo report: Conflict, international response, lessons learned: A report from the Independent International Commission on Kosovo. Oxford: Oxford University Press. Kaldor, Mary. 1999. New & Old Wars: Organized Violence in a Global Era. Stanford: Stanford University Press. Katzenstein, Peter J. 1996. ‘Introduction: Alternative perspectives on national security.’ In Peter J. Katzenstein (ed.), The Culture of National Security. Norms and Identity in World Politics, pp. 1–32. New York: Columbia University Press. Kersten, Mark. 2018. ‘A fatal attraction? The UN Security Council and the relationship between R2P and the International Criminal Court.’ In Jeff Handmaker and Karin Arts (eds), Mobilising International Law for ‘Global Justice’, pp. 142–62. Cambridge: Cambridge University Press. Kinsella, Helen M. 2011. The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian. Ithaca: Cornell University Press. Krook, Mona L. and Jacqui True. 2012. ‘Rethinking the life cycles of international norms: The United Nations and the global promotion of gender equality.’ European Journal of International Relations, 18 (1): 103–27. Kurtz, Gerrit and Philipp Rotmann. 2016. ‘The evolution of norms of protection: Major powers debate the Responsibility to Protect.’ Global Society, 30 (1): 3–20. DOI:10.1080/13600826.2015.1092425. Lang Jr., Anthony F. 2009. ‘Conflicting rules: Global constitutionalism and the Kosovo intervention.’ Journal of Intervention and State Building, 3 (2): 185–204. Lee, Steven P. 2010. ‘The moral distinctiveness of genocide.’ Journal of Political Philosophy. DOI:10.1111/j.1467-9760.2009.00347.x. ICJ. 1996. Legality of the Threat or Use of Nuclear Weapons ICJ Reports 226. ICJ, 08.07.1996. Accessed 19 May. http://​www​.icj​-cij​.org/​docket/​files/​95/​7495​.pdf

406  Handbook on global constitutionalism Luck, Edward C. 2015. ‘R2P at ten: A new mindset for a new era?’ Global Governance: A Review of Multilateralism and International Organizations, 21 (4): 499–504. Macleod, Christopher. 2012. ‘An alternative approach to the harm of genocide.’ POLITICS, 23 (3): 197–206. Malito, Debora V. 2019. ‘Morality as a catalyst for violence: Responsibility to Protect and regime change in Libya.’ Politikon, 46 (1): 104–21. DOI:10.1080/02589346.2019.1572296. March, James G. and Johan P. Olsen. 1989. Rediscovering Institutions. New York: The Free Press. Marlier, Grant and Neta C. Crawford. 2013. ‘Incomplete and imperfect institutionalisation of empathy and altruism in the “Responsibility to Protect” doctrine.’ Global Responsibility to Protect, 5 (4): 397–422. DOI:10.1163/1875984X-00504003. ICJ. 1984. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) ICJ Reports. ICJ, 26.11.1984. Moe, Louise W. and Anna Geis. 2020. ‘From liberal interventionism to stabilisation: A new consensus on norm-downsizing in interventions in Africa.’ Global Constitutionalism – Human Rights, Democracy and the Rule of Law, 9 (2): 387–412. DOI:10.1017/S204538171900039X. NATO. 1999a. ‘NATO’s role in relation to the conflict in Kosovo.’ http://​www​.nato​.int/​kosovo/​history​ .htm. NATO. 1999b. ‘Statement on Kosovo issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington, D.C.’ https://​www​.nato​.int/​cps/​en/​natolive/​ official​_texts​_27441​.htm​?selectedLocale​=​en. Nuñez-Mietz, Fernando G. 2018. ‘Legalization and the legitimation of the use of force: Revisiting Kosovo.’ International Organization, 72 (3): 725–57. DOI:10.1017/S0020818318000152. Onuf, Nicholas G. 2013. Making Sense, Making Worlds: Constructivism in Social Theory and International Relations. Oxford and New York: Routledge. Orchard, Phil and Antje Wiener. 2021. Contesting the World: Norm Research in Theory and Practice. Pattison, James. 2017. ‘Perilous moninterventions? The counterfactual assessment of Libya and the need to be a responsible power.’ Global Responsibility to Protect, 9 (2): 219–28. DOI:10.1163/1875984X-00902007. Peltner, Anne. 2017. ‘Competing norms and foreign policy change: Humanitarian intervention and British foreign policy.’ International Politics, 54 (6): 745–59. DOI:10.1057/s41311-017-0062-8. Peters, Anne. 2016. Beyond Human Rights: The Legal Status of the Individual in International Law. Cambridge: Cambridge University Press. Rodley, Nigel. 2015. ‘Humanitarian Intervention’. In Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law, pp. 775–96. Oxford: Oxford University Press. Rome Statute of the International Criminal Court 1998. Rome Statute. UN Diplomatic Conferences of Plenipotentiaries on the Establishment of the International Criminal Court. Accessed 3 November. https://​undocs​.org/​en/​A/​CONF​.183/​9. Sanders, Rebecca. 2014. ‘Legal frontiers: Targeted killing at the borders of war.’ Journal of Human Rights, 13 (4): 512–36. Schmitt, Michael N. 2013. ‘Extraterritorial lethal targeting: Deconstructing the logic of international law.’ Columbia Journal of Transnational Law, 52 (1): 77–112. Smith, Karen E. 2010. Genocide and the Europeans. New York: Cambridge University Press. Staunton, Eglantine and Jason Ralph. 2020. ‘The Responsibility to Protect norm cluster and the challenge of atrocity prevention: An analysis of the European Union’s strategy in Myanmar.’ European Journal of International Relations, 26 (3): 660–86. DOI:10.1177/1354066119883001. Stimmer, Anette and Lea Wisken. 2019. ‘The dynamics of dissent: When actions are louder than words.’ International Affairs, 95 (3): 515–33. DOI:10.1093/ia/iiz019. Sylvester, Christine. 2013a. ‘Experiencing the end and afterlives of International Relations/theory.’ European Journal of International Relations, 19 (3): 609–26. Sylvester, Christine. 2013b. War as Experience: Contributions from International Relations and feminist analysis. Abdingdon: Routledge. Tacheva, Blagovesta and Garrett W. Brown. 2015. ‘Global constitutionalism and the Responsibility to Protect.’ Global Constitutionalism – Human Rights, Democracy and the Rule of Law, 4 (3): 428–67. DOI:10.1017/S2045381715000155. Teitel, Ruti. 2011. Humanity’s Law. Oxford: Oxford University Press.

Human rights, sovereignty, and the use of force  407 Téson, Fernando R. 2014. ‘The moral basis of armed humanitarian intervention revisited.’ In Don E. Scheid (ed.), The Ethics of Armed Humanitarian Intervention, pp. 61–77. Cambridge: Cambridge University Press. Thakur, Ramesh. 2016. ‘The Responsibility to Protect at 15.’ International Affairs, 92 (2): 415–34. Tomuschat, Christian. 2014. ‘Die Rechtmäßigkeit der Resolution 1973 (2011) des UN-Sicherheitsrates.’ In Gerhard Beestermöller (ed.), Libyen: Missbrauch der Responsibility to Protect? pp. 13–29. Baden-Baden: Nomos. UNGA. 1948. Convention on the Prevention and Punishment of the Crime of Genocide. https://​treaties​ .un​.org/​doc/​Publication/​UNTS/​Volume​%2078/​volume​-78​-I​-1021​-English​.pdf. United Nations. 2005. ‘Outcome Document of the 2005 World Summit.’ https://​undocs​.org/​A/​RES/​60/​1. UNSC. 1991. ‘Resolution 688.’ https://​undocs​.org/​S/​RES/​688(1991). UNSC. 1992a. ‘Resolution 767.’ https://​undocs​.org/​S/​RES/​767(1992). UNSC. 1992b. ‘Resolution 794.’ https://​undocs​.org/​S/​RES/​794(1992). UNSC. 2011. ‘Resolution 1973.’ https://​undocs​.org/​S/​RES/​1973(2011). Vetterlein, Antje and Antje Wiener. 2013. ‘Gemeinschaft Revisited: Die sozialen Grundlagen internationaler Ordnung.’ Leviathan, 41 (Sonderband 28/2013): 78–103. von Arnauld, Andreas. 2009. ‘Souveränität und Responsibility to Protect.’ Die Friedenswarte: Journal of International Peace and Organization, 84 (1): 11–52. Wagner, Markus. 2014. ‘The dehumanization of international humanitarian law: Legal, ethical, and political implications of autonomous weapon systems.’ Vanderbilt Journal of Transnational Law, 47 (5): 1371–424. Weiss, Thomas G. 2014. ‘Military humanitarianism: Syria hasn’t killed it.’ The Washington Quarterly, 37 (1): 7–20. Welsh, Jennifer M. 2013. ‘Norm contestation and the Responsibility to Protect.’ Global Responsibility to Protect, 5 (4): 365–96. Welsh, Jennifer M. 2016. ‘The Responsibility to Protect at ten: Glass half empty or half full?’ The International Spectator, 51 (2): 1–8. DOI:10.1080/03932729.2016.1163943. Welsh, Jennifer M. 2019a. ‘Norm robustness and the responsibility to protect.’ Journal of Global Security Studies, 4 (1): 53–72. Welsh, Jennifer M. 2019b. ‘The individualisation of war: Defining a research programme.’ Annals of the Fondazione Luigi Einaudi, 53: 9–28. Wendt, Alexander. 1992. ‘Anarchy is what states make of it: The social construction of power politics.’ International Organization, 46 (2): 391–426. Wheeler, Nicholas J. 2000. ‘Reflections on the legality and legitimacy of NATO’s intervention in Kosovo.’ The International Journal of Human Rights, 4 (3-4): 144–63. DOI:10.1080/13642980008406897. Wheeler, Nicholas J. 2002. Saving Strangers – Humanitarian Intervention in International Society. Oxford and New York: Oxford University Press. Wheeler, Nicholas J. 2006. ‘The humanitarian responsibility of sovereignty: Explaining the development of a new norm of military intervention for humanitarian purposes in international society.’ In Jennifer M. Welsh (ed.), Humanitarian Intervention and International Relations, Paperback edn, pp. 29–52. Oxford and New York: Oxford University Press. Wiener, Antje. 2007. ‘The dual quality of norms and governance beyond the state: Sociological and normative approaches to “interaction”.’ Critical Review of International Social and Political Philosophy, 10 (1): 47–69. DOI:10.1080/13698230601122412. Wiener, Antje. 2008. The Invisible Constitution of Politics. Contested Norms and International Encounters. Cambridge: Cambridge University Press. Wiener, Antje. 2009. ‘Enacting meaning-in-use: Qualitative research on norms and international relations.’ Review of International Studies, 35 (1): 175–93. Wiener, Antje. 2018. Contestation and Constitution of Norms in Global International Relations. Cambridge: Cambridge University Press. Wiener, Antje and Uwe Puetter. 2009. ‘The quality of norms is what actors make of it: Constructivist research on norms.’ Journal of International Law and International Relations, 5 (1): 1–16. Wilcox, Lauren B. 2015. Bodies of Violence. Oxford: Oxford University Press. Winston, Carla. 2018. ‘Norm structure, diffusion, and evolution: A conceptual approach.’ European Journal of International Relations, 24 (3): 638–61.

408  Handbook on global constitutionalism Zehfuß, Maja. 2001. ‘Constructivism and identity: A dangerous liaison.’ European Journal of International Relations, 7 (3): 315–48.

PART V INSTITUTIONS AND FRAMEWORKS

28. International judicial review Başak Çalı

INTRODUCTION International judicial scrutiny of the actions and omissions of states has been a part of international legal practice ever since the advent of the Permanent Court of Arbitration in 1899 and Permanent Court of International Justice in 1922.1 The use of the term ‘judicial review’ in the context of the judicial functions of international courts vis-à-vis states is, however, more contemporary. Its emergence can be linked to the proliferation of international courts and tribunals and in particular to the rise of the regional human rights courts of Europe, the Americas and Africa carrying out rights-based judicial review of state actions and omissions, including their legislation. Judicial review powers of international courts vis-à-vis international organisations, on the other hand, is largely absent in international law’s architecture. One notable exception is the European Union, which has established a procedure for judicial review of ‘legislative measures’ promulgated by the European Council and Commission (Arnull 2015). To describe the function of international courts as one of judicial review requires us to make a qualitative shift in how we understand the purpose and the role of international courts and tribunals in the international legal order. International judicial review is a prominent feature of global constitutionalism. Global constitutionalism holds that reviewing the actions and omissions of states from a perspective of international public constitutionality, rather than from a perspective of settlement of international disputes based on bilateral and private promises between states (Simma 1994) is both legally possible and normatively desirable. Framing the functions of international courts as international judicial review, however, requires the empowerment of the international judiciary at the expense of state sovereignty, exercised by domestic courts, legislatures and executives as well as at the expense of international organisations that exercise public powers (von Bogdandy and Venzke 2012). As such, international judicial review is at the heart of questions concerning the legal basis and scope of the constitutional fabric of international law and the constitutional limits such fabric can impose on the exercise of state sovereignty and sovereign-like acts of international organisations. What are the implications of conceiving the function of international courts as international judicial review? To answer this question, the chapter addresses the following sub-questions: what are the central differences between judicial review in domestic and international contexts? What kinds of international courts exercise judicial review and in what ways? What are the core objections to international judicial review by international courts? How has the practice of international judicial review by human rights courts in particular contributed to the theory and practice of global constitutionalism?

1 On the powers of the Permanent Court of Arbitration and the International Court of Justice, see, respectively, https://​pca​-cpa​.org/​en/​home/​ and http://​www​.icj​-cij​.org/​court/​index​.php​?p1​=​1​&​p2​=​1.

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International judicial review  411 My central argument here is that international judicial review exists in different forms and shades in international law. These range from human rights-based judicial review carried out by regional human rights courts to judicial review based on the rule of law requirements of free trade exercised by the World Trade Organization. Standards of judicial review too are diverse, ranging from lenient to strict review, even among regional human rights courts. There is also disagreement concerning the appropriateness of judicial review and appropriate standards of judicial review at the international level, pointing to diverse, fragmented and contested visions of global constitutionalism. Despite disagreement and diversity, there also now exist fruitful research agendas that concern the purpose of international judicial review (Kumm 2009), the appropriate standards for international judicial review across different judicial institutions (Carozza 2003; Follesdal 2009; Gruszczynski and Werner 2014; Çalı 2016), the relationship between international judicial review, sovereignty and democracy (von Staden 2012; Bellamy 2014; Follesdal 2021) and how international judicial review can foster global public values (Cançado Trinidade 2012).

DEFINING INTERNATIONAL JUDICIAL REVIEW The practice of domestic judicial review is characteristically understood as the domestic judiciary’s review of executive actions, judicial actions and legislation of domestic states against the background of a domestic constitution and bill of rights (Waldron 2006). In domestic judicial review literature, the review of judicial decisions of lower courts and executive organs by an authorised judicial organ, often a supreme court or a constitutional court against the constitution of the domestic legal order, is understood as a non-controversial standard judicial function. The controversy around domestic judicial review focuses on the judicial review of legislation by domestic courts, in particular when such review leads to legislation being struck down. In such instances, domestic judicial review comes into conflict with the constitutive power of the legislature or the right to (democratic) self-rule of people through legislation. Sceptics of domestic judicial review often ask why the rule of judges should be favoured over the rule of the people as a matter of domestic constitutionalism (Waldron 2006; Bellamy 2007). Much of this context is missing when we frame the activity of international courts and tribunals as international judicial review. First, the international legal system lacks an explicit constitution, although there have long been debates on an implicit constitution (Kumm 2004; Fassbender 2009). Second, even if there are implicit constitutionalist features in the international legal system, such features are interpreted differently by different international courts due to the non-hierarchical and pluralistic organisation of international law. There is no supreme constitutional judicial authority to consolidate and specify such features, but a plurality of constitutionalist or constitutionalising projects, alongside sceptics of such projects based on the centrality of state sovereignty in international law. Third, no international court has the power over domestic courts and executives to enforce its own decisions or to strike down legislation. In other words, when international judicial review does take place, it can only take the form of weak review (Tushnet 2003), meaning states retain the ultimate power to amend their legislation, change their judicial practice or alter or annul their executive decisions. Finally, international courts do not have powers to review international executive or legislative organs, with the exception of the Court of Justice of the EU. Considering the fundamental differences

412  Handbook on global constitutionalism between domestic and international contexts, particularly the lack of explicit constitutional norms, the disagreements as to the constitutional features of international law and the lack of enforcement powers of international courts, could any of the judicial activities of international courts be framed as international judicial review? We may meaningfully talk about international judicial review only if we first accentuate the presence of a constitutional fabric in international law and the inherent limitations of the powers of international courts. As such, framing the activities of international courts and tribunals as international judicial review foremost requires an interpretive shift, actual or desired, in the understanding of the normative fabric of international law from a constitutionalist perspective. This shift must presume that there are constitutional principles at work that can be employed by international judges that allow for the review of actions of states as well as international organisations. (Peters 2006). This primarily requires conceiving all forms of international law as a form of public law, rather than contractual law, composed of bilateral promises between sovereign states. Such a shift in focus inevitably links in with a range of debates in international law. Most notably, it engages with how limitations on state sovereignty can be imposed, the role of consent of states versus evolutionary interpretation of international law in defining the scope of judicial review functions, the legitimacy of international judges exercising judicial review functions vis-à-vis sovereign states, the relationship between international judiciaries and democratic legislators and domestic constitutional courts, and the distribution of competences between international courts and international organs that exercise delegated powers, such as the United Nations (UN) Security Council. Structurally, however, international judicial review does not raise the same intensity of problems that are highlighted in the context of strong domestic judicial review: in all of its manifestations, international judicial review is a weak form of judicial review when compared to domestic judicial review. This latter feature, however, can also impair the uptake of the decisions of international courts by states, risking non-implementation of the judgments of international courts.

SETTING THE SCENE: INTERNATIONAL COURTS WITH DIVERSE FUNCTIONS ON THE INTERNATIONAL STAGE It may be useful to characterise international courts based on their explicitly assigned judicial functions, the types of cases they receive and the types of access they offer to state and non-state actors in order to assess whether they are more prone to exercise judicial review-type functions relying on a constitutionalist interpretive frame rather than on a traditional dispute resolution role. First, there are those courts (or quasi-judicial mechanisms) that are tasked with traditionally inter-state dispute resolution tasks. These include the International Court of Justice (ICJ) and the World Trade Organization (WTO) Dispute Settlement Mechanism. Second, there are international courts or quasi-judicial mechanisms providing access to individuals and human rights-based review of state actions and omissions. Included in this group are human rights courts, regional and sub-regional justice courts and UN Human Rights treaty bodies that adjudicate based on human rights conventions or economic integration treaties. Third, there are international criminal courts that have powers to try individuals, as in the case of the International Criminal Court (ICC). Fourth, there are courts of regional integration organisations, in Europe, Americas and Africa. Finally, there are international investment arbitration

International judicial review  413 tribunals settling disputes brought by investors against states under bilateral investment agreements. These tribunals are not standing courts and the decisions of one tribunal are neither binding on any other tribunal nor are they subject to any centralised form of further review. None of these international courts or bodies have explicit judicial review functions openly recognised in their constitutive documents, save for the Court of Justice of the European Union. They carry out judicial review-type functions based on their interpretation of the scope of their mandate, the types of cases they receive and types of claims they are asked to adjudicate. In this diverse constellation of institutions, regional human rights courts come the closest to performing domestic judicial review-type functions. This is for two reasons. First, they rely on explicit regional bills of rights and assess whether a state has overstepped its permissible domain of action in its dealings with individuals or legal persons. Second, they address all types of state actions, ranging from executive action to legislative action2 and constitutional provisions3 to referenda.4 For this reason, they have also been the natural host of legitimacy of international judicial review debates in the literature (Follesdal 2009; Bellamy 2014). The WTO Dispute Settlement Mechanisms are often characterised as exercising public authority beyond inter-state dispute resolution functions (Cass 2005; von Bogdandy and Venzke 2012). The WTO Dispute Settlement Mechanisms review domestic legislation in the context of inter-state trade disputes. Unlike human rights courts, the judicial review of legislation by the WTO seeks to establish whether a state has infringed its free trade commitments to other states through enacting domestic legislation (Becroft 2012). Human rights-based review do not directly figure in the mandate of the WTO. Rather, the WTO reviews whether human rights or public-values related justifications can stand up to scrutiny with regard to the right to trade (Howse and Langille 2012). The ICJ, handles inter-state cases and issues advisory opinions. It does not have any explicit powers to review actions of UN organs, even though it is the judicial organ of the UN. Its judicial function may extend to reviewing states’ executive, judicial or legislative practices in order to establish whether a state has violated its international law obligations owed to other states. The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 2004 is a rare example of an indirect constitutional compatibility review of a practice sustained by domestic law (the wall) with international law.5 In a rare number of inter-state cases that indirectly involved the rights of individuals, the ICJ has also had the opportunity to review the compatibility of the actions of domestic courts with international law.6 Unlike human rights courts and the WTO, the ICJ relies on a holistic interpretation of all sources of international law to exercise any review functions. Commentators, however,

2 See for example, Hirst v UK, Judgment of 6 October 2005, 42 EHHR (2006) 41; Tekeli v Turkey, Judgment of 16 November 2004 42 EHRR (2006) 55; Barrios Altos Case, Judgment of 14 May 2001, Inter-Am Ct. HR (Ser. C) No. 75 Yatama v Nicaragua, Judgment of 23 June 2005, Inter-Am Ct. HR Series C no. 127, IHRL 1511 (2005). 3 Seidic and Finci v Bosnia-Herzegovina, Judgment of 22 December 2009, (2009) ECtHR. 4 Juan Gelman et al v Uruguay, Case 43 8–06, Report No. 30/07, Inter-Am. CHR, OEA/Ser.L/V/ II.130 Doc. 22, rev. 1 (2007). 5 The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 9 July 2004, ICJ, The Hague. 6 See for example, Ahmadou Sadio Diallo (Republic of Guinea v DRC), Judgment of 30 November 2010; Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99 (Jurisdictional Immunities).

414  Handbook on global constitutionalism note that the ICJ does not consistently employ a global constitutionalist vision when discharging its functions (Hernandez 2013). Indeed, a long-standing disagreement amongst the judges of the ICJ is whether the ICJ can and should address the cases before it from a constitutionalist perspective (Watson 1993; Akande 1997). The ICC also has indirect judicial review functions, over domestic judiciaries in particular. Under Article 17 of its Statute, in order to declare a case admissible, the ICC must be satisfied that a domestic court is unable or unwilling to try a person suspected of having committed an international crime in an independent fashion. This brings the ICC closer to the domain of review of both law and judicial practice (Bernhard 2014). Such review, aimed at determining whether the ICC declares a case admissible or not, indirectly assesses the compatibility of criminal law and procedure with both international criminal law and international human rights law. Finally, international arbitration tribunals review domestic executive and legislative actions of states to determine whether states fail to uphold their obligations vis-à-vis foreign investors. A key debate concerning the state-investor arbitration regime is the lack of a constitutionalist outlook in the work of the ad hoc arbitrators. (White and von Staden 2010). This brief survey of international courts shows that international courts have differentiated and often incomplete legal resources to engage in international judicial review practices. With the exception of human rights courts and the Court of Justice of the European Union, none of the institutions carry out judicial review of domestic decisions and legislation in ways similar to domestic constitutional courts, relying on a bill of rights. Indeed, for international courts that are not able to rely on a bill of rights, the shift from an inter-state dispute resolution paradigm towards public law judicial review-type functions remains contested. Sceptics argue that the primary function of international courts is to resolve disputes and not to engage in constitutionalist endeavours by proactively assuming judicial review powers (Pellet 2000). It is, therefore, first helpful to consider objections to the ability to perform judicial review functions in the context of international courts and bodies.

PRELIMINARY OBJECTIONS TO INTERNATIONAL JUDICIAL REVIEW IN THE CONTEXT OF TRADITIONAL INTER-STATE DISPUTES International judicial review is a contested idea in the traditional inter-state relations setting of international law. While international judicial review standards have indeed developed in specific areas of international law, it is argued that these cannot be generalised as a standard view of judicial function on the international plane. This is because they are merely fragmented sectorial developments flowing from the terms of specific treaties that often only allow for weak judicial review functions in specific regions of the world. In other words, there is a difference between, say, having human rights courts in some parts of the world and having human rights as a standard for review for all international courts. Instead, it is argued, the core case of international judicial function is that of a private law paradigm of inter-state dispute resolution that seeks to uncover and establish whether consensual obligations between states are violated. Accordingly, there are four core objections to adopting international judicial review as a general paradigm of international judicial decision-making.

International judicial review  415 The first is the empirical objection. This argues that there is an absence of robust positive international constitutional norms that bind all states in the international legal system that can offer a viable and generalised presumption for constitutionality review (Weil 1983). While the concept of ius cogens was introduced to international law by the Vienna Convention on the Law of Treaties of 1969, sceptics often highlight that the substantive content of jus cogens norms is either too minimalistic or indeterminate to offer a constitutional background for international judicial review (Paulus 2001). Multilateral international treaties, despite their rise since the advent of the UN, are also viewed as falling short of offering a robust constitutional fabric. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR), despite their sizeable ratifications, are plagued by reservations and are imperfect, shackled to a world of bilateral treaty obligations. The customary status of human rights or environmental law provisions is often too unclear to act as standards of judicial review. The second argument against international judicial review is the lack of delegation. International law is not fit for international judicial review as long as states do not intend for international courts to perform this function (Oeter 2006). Judicial review, by its very nature, flows from political actors delegating power to judicial actors. In the domestic context, those who have concerns about judicial review do not dispute delegating to judges; they dispute how courts exercise judicial review powers. In the international law domain all inter-state courts are designed to be dispute resolution mechanisms, rather than institutions fulfilling constitutional guardianship functions. In the face of a lack of explicit delegation, general international courts performing judicial review-type activities usurp power from states and international organisations. In the Lockerbie case, the ICJ accepted this when it abstained from reviewing a UN Security Council Resolution.7 The third objection is normative. In the well-known Lotus dicta, the Permanent Court of International Justice (PCIJ) underlined that, in the absence of generally accepted norms in international law, presumption must be a priori permissibility of state action.8 International judicial review must depart from an opposite presumption: the publicness of international law and the consideration of state action in the light of fundamental constitutional constraints relevant to the international law domain (Kingsbury 2008). The shift of power away from sovereign states to international courts and recognition that the latter can engage in some degree of international law-making is inherent in the logic of judicial review. This, however, contradicts the image of international courts carefully studying the consent of states to see whether they have accepted a legal obligation, which they may have subsequently violated. Fourth is the ideological objection. Authors hold that advocating international judicial review cannot be divorced from advocating for substantive constitutional values underpinning the international legal order. If international courts carry out judicial review functions, what vision of a global constitution motivates such review? In the context of the WTO and investor-state arbitration, critics hold that the international judicial review standards of these institutions favour corporate interests at the expense of the rights of individuals by prioritising the right to free trade or the rights of investors (Wallach and Sforza 1999; Burke-White and 7 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v U.S.), 1992 ICJ 3 (April 14) (request for the indication of provisional measures). 8 S.S. ‘Lotus’, France v Turkey, Judgment, (1927) PCIJ Series A no. 10, ICGJ 248.

416  Handbook on global constitutionalism von Staden 2010; Petersmann 2019). Critics, therefore, caution against the mere advocacy of a judicial review discourse as a good in itself in the absence of a uniform understanding of the fabric of global constitutionalism. While international judicial review is often associated with more rule of law and constraints on the power of states (Peters 2006), depending on the judicial review standards employed, it may also undermine a states’ public functions and their ability to protect individuals primarily from a neo-liberal vision of international judicial review (Howse 2007). In summary, international judicial review practices may undermine domestic constitutional review rather than complement it. Despite these core objections, there are increasingly vocal voices in the international law literature holding that the empirical objection is outdated (Klabbers et al 2009), that the lack of delegation objection is overstated in the light of the dynamic interpretation of international law by courts and tribunals (Çalı 2015), and that vesting power in international judiciaries may not after all be a bad thing: it can ultimately cultivate rule of law in the international system and buttress global constitutionalism (Peters 2006). International courts can exert crucial agency in developing and harmonising standards of international judicial review. Global constitutionalism, operating through the horizontal nature of international law is capable of developing a diversity of judicial review standards carried out by different types of courts (Peters 2015).

THE CORE CASE OF INTERNATIONAL JUDICIAL REVIEW: HUMAN RIGHTS COURTS While the question of whether international judicial review is fit for the traditional venues of inter-state dispute resolution is a matter of debate in the general international law context, developments in judicial review carried out by human rights courts offer important inroads into this general debate and, simultaneously, complicate it further. In the field of international human rights law, the lack of a constitutional fabric argument and the lack of delegation argument are justifiably downplayed. Human rights courts are tasked with interpreting the compatibility of state action with those regional human rights conventions that states have ratified. Regional human rights courts carry out a full range of judicial review powers. They review domestic executive action, judicial decisions of high courts as well as domestic legislation in a diverse range of issues spanning from amnesty laws, freedom of assembly laws to election laws and even constitutions. In the absence of strong preliminary objections to judicial review, the literature on the judicial review of human rights courts is similar to debates in the domestic judicial review literature. That is, do human rights courts get the standards of judicial review right? Are they too expansive or are they unduly exercising judicial restraint? In defining the scope of judicial review powers, regional human rights courts in Europe, the Americas and Africa have developed a common overarching approach that holds that, owing to their specific mandate to interpret and apply human rights law, they will review state action in ways that render international human rights protections effective (Çalı 2020). As such, regional human rights courts have become important forces for entrenching global constitutionalism through specifying the content of international human rights as a basis for autonomous standards of international judicial review. In the jurisprudence of human rights courts, the effective interpretation paradigm has led to three interrelated doctrines of judicial review. First, regional human rights courts presuppose

International judicial review  417 that terms of the human rights conventions exist independently of the terms that are defined in domestic laws. This is called the autonomous interpretation of human rights law (Letsas 2004). This assigns a significant constitutionalist interpretive power to regional human rights courts and marks a decided move away from individual state consent in interpreting human rights. Second, human rights provisions must be interpreted in the light of the present conditions. Third, human rights assign not only negative, but also positive obligations to protect rights, including putting in place domestic legislative frameworks to respect rights, to investigate human rights violations, and to protect individuals from third parties (Mowbray 2005). More recently, the European Court of Human Rights (ECtHR), has further expanded its review functions to include bad faith restrictions of human rights, thereby not only reviewing actions or omissions of states, but also their political and economic motivations. (Çalı and Hatas 2021). In summary, human rights courts have not only asserted that they have powers of judicial review, they have also defined human rights judicial review in ways that may go beyond the powers and practices of domestic judicial review carried out by constitutional courts.

STANDARDS OF INTERNATIONAL JUDICIAL REVIEW AND HUMAN RIGHTS COURTS Of the three human rights systems, the Inter-American Court of Human Rights has adopted the broadest and the strictest conception of international judicial review, carrying out de novo review of both the facts and the laws of domestic legal systems, including domestic constitutional arrangements. Of particular importance in the Inter-American Court’s approach to judicial review is the expansive and detailed remedies ordered by the Court, akin to strong judicial review in domestic constitutional contexts (Antkowiak 2008). Furthermore, the ‘conventionality control doctrine’ introduced by the Inter-American Court requires all domestic courts to take Inter-American case law into account when reviewing domestic legislation, even if such case law is not compatible with existing domestic laws (Dulitzky 2015).9 These features assert both the universality of human rights and the supremacy of the interpretation of these rights by the Inter-American Court over domestic judiciaries and parliaments. The Inter-American Court, therefore, has opted for a judicially activist role that seeks to entrench a human rights-based global constitutionalism. In comparison, the ECtHR has articulated and applied more nuanced standards of international judicial review. The ECtHR grants states a ‘margin of appreciation’ when reviewing domestic legislation and action. It recognises that the margin can be ‘wider’ or ‘narrower’ depending on the rights engaged, and the existence of a Europe-wide or global consensus on the scope of the rights (Spielmann 2012). In more recent years, the Court has also identified the quality of the reasoning of domestic legislatures or courts as an influencing factor when determining the scope of margin of appreciation, indicating that human rights respecting domestic courts and legislatures will be accorded a wider margin (Saul 2015; Çalı 2016). The ECtHR’s standard vision of international judicial review, therefore, is that it takes place in tandem with domestic judicial review, not at the expense of it. The Court has, however, also embraced a variable geometry for judicial review, in particular holding that if a states’ pursuance of 9 See also, Inter-American Court of Human Rights, Almonacid Arellano v Chile, Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 September 2006, Series C No. 154, para. 124.

418  Handbook on global constitutionalism ulterior purposes is a fundamental aspect to the restrictions of rights in a specific case, it will employ stricter review standards. The differences in the conceptualisation of the judicial review powers of the Inter-American Court and the ECtHR point to a deeper and important contention in defining the purview of judicial review powers of human rights courts: what should the appropriate standard of judicial review be for human rights courts? The Inter-American model, on the one hand, is a clear assertion of a principled commitment to strict review standards, emphasising the importance of setting global human rights protections over allowing for domestic diversity in the application of human rights standards. The European model, on the other hand, argues for a principled accommodation of deference to domestic legislators and judiciaries save in the case of manifest irregularities in domestic constitutional review. This is justified on the grounds of the subsidiary nature of international judicial review when engaging with democratic legislators and well-reasoned domestic court judgments concerning human rights.

NORMATIVE IMPLICATIONS OF INTERNATIONAL JUDICIAL REVIEW In the light of the discussion above, we can identify four types of normative implications regarding the exercise of judicial review functions by international courts. First, regardless of fora, switching from the logic of bilateral dispute resolution to international judicial review empowers international judges at the expense of domestic parliaments, executives, courts, as well as executive and legislative organs of international organisations. Searching for international constitutional limits to state action, be these in the field of use of force, trade, human rights or investment, necessarily entails some degree of judicial law-making. Is this appropriate? Should international judges be endowed with these powers? In the human rights context, this has led some to focus on processes of judicial appointments and to look at ways of bestowing democratic legitimacy to the appointment of judges (Bellamy 2014). The rise of the judicial review mode of reasoning in all fields of international law will necessitate more attention to the processes of appointing judges to offset what Waldron coined as ‘judicial sovereignty’ (Waldron 2021). Second are the underpinning constitutionalist visions on which international judicial review must rely. How can we square the relationship between international judicial review and state sovereignty in the absence of an explicit global constitution? What is the acceptable range of constitutional pluralism of judicial review standards in what is still predominantly a horizontal and non-hierarchical international legal order? This, Kumm (2013) suggests, requires rethinking the value of consent based on the regulative domain in which it operates and more sophisticated theories of grounds for deference to states, while seeking to entrench global constitutionalism based on human rights and rule of law. For Peters (2017) human rights considerations should figure more prominently when interpreting, for example, trade and investment law through the principle of systemic integration. Besson (Chapter 23 in this Handbook), however, holds that the constitutional fabric of international law can only be specified through the employment of comparative method, treating in particular human rights standards as co-produced by domestic constitutional and international law. Third is a variant of the second normative implication. What role should a democratically informed standard of judicial review play in the context of international judicial review?

International judicial review  419 International judicial review practices, in particular by human rights courts (Bellamy 2014) and the WTO Dispute Settlement Mechanism (Wallach and Sforza 1999), raise particular puzzles of legitimacy, especially when performed on democratically enacted legislation. Should international judicial review standards be based on the democratic credentials of a states’ actions with the presumption that there must be deference to domestic democratic decision-making processes? The latter invariably requires distinguishing judicial review standards based on the type of state that is being judicially reviewed. If an international court is engaging with a democratic state, this view demands that judicial review standards must be more lenient than judicial review standards for a non-democratic state. This is because, in the case of non-democratic states, reasoning for deference based on the democratic standard is misplaced. We have seen that the case law of the ECtHR has tilted towards this doctrine of judicial review when engaging with deliberative parliaments10 (Saul 2015) or constitutional court decisions of democratic states. The WTO has also recognised that responsible governments may face more lenient judicial review.11 Fourth is the normative implication of the co-existence of domestic judicial review and international judicial review. Should international courts conceive their role as one of the supremacy of international judicial review or one of mutual dialogue and accommodation with their domestic judicial review counterparts? In the context of human rights courts, the Inter-American Court and the ECtHR have offered different answers to this question. While the Inter-American Court has argued for the supremacy of international judicial review (Dulitzky 2015), the ECtHR, through the use of its margin of appreciation doctrine, holds that the purpose of international human rights review is not to assert supremacy over domestic courts, but to enable them to carry out judicial reviews themselves in the light of international standards (Çalı 2016). The co-existence of domestic and international review also gives rise to the inverse problem. What kinds of review standards should domestic courts impose when on the receiving end of the decisions of international courts and bodies? Should domestic courts be less lenient towards enforcing the decisions of international courts or bodies based on their own constitutional identity or based on the constitutionalist credentials of the international body? The latter is even more significant when international courts or bodies deliver decisions based on the logics of private dispute settlement, as is often the case with investor-state arbitration tribunals (Roberts and Trahanas 2014). Finally, the fifth normative implication concerns the fragmentation of international law, posing a unique set of questions on the scope of judicial review that may be justifiably carried out by different international courts. Should, for example, human rights courts exert judicial review powers over UN Security Council resolutions? Should international investment arbitration tribunals carry out lenient forms of judicial review when the interests of the private investors collide with public duties of states (Burke-White and von Staden 2010)? In the absence of a world court with judicial review powers over all issue areas and states, the fragmentation of judicial review standards is perhaps inevitable. However, the practical risks of such fragmen10 Animal Defenders v UK, Judgment of 22 April 2013; SAS v France, ECtHR, Judgment of 1 July 2014. 11 See, for example, Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R (16 January 1998).

420  Handbook on global constitutionalism tation raise deeper rule of law questions. The possibility of international judicial review based on global constitutionalist principles varies significantly from court to court owing to the lack of reference to human rights in their mandates or different interpretations of the rule of law.

CONCLUSION This chapter has mapped the core debates concerning international judicial review. These include the preliminary objections to judicial review by international courts as a form of judicial activity and the normative implications of the burgeoning practices of international judicial review, most notably carried out by human rights courts. It showed that discussions on the desirability, scope and standards of international judicial review are ultimately tied to deeper normative questions on whether a constraining framework of constitutional norms exists in the international system and, if they do exist, what is the scope of such norms, how much pluralism is acceptable in the articulation of such norms across international courts and tribunals and how should such norms interact with their counterparts on the domestic plane? In the traditional inter-state dispute resolution paradigm, the constitutional features of international law are underplayed. International courts operate as dispute resolution mechanisms through which the private interests of states are identified and adjudicated. International judicial review, on the other hand, by its very nature, requires going beyond the private nature of states’ interests and orients adjudication towards the permissibility of all forms of public action against the backdrop of constitutional norms. This mode of reasoning, therefore, can only flourish if some constitutional features are attributed to the international system beyond the minimalist principle of upholding the private rights and obligations of states vis-à-vis other states. International judicial review understood in this way has flourished, particularly within the context of human rights courts. This flourishing, however, also brings with it associated problems of the legitimacy of international judicial review and the normative justifiability of the standards of judicial review against the backdrop of new forms of counter-majoritarian challenges that judicial review triggers (Lustig and Weiler 2018). This discussion shows that the relationship between global constitutionalism and international judicial review is co-constitutive. International judicial review relies on global constitutionalist visions of international law and it is an important force to entrench global constitutionalism in disparate legal contexts. It is precisely for this reason that shifting from inter-state dispute resolution to international judicial review on the part of international judges has deep normative and political consequences. Further research in international judicial review must focus on the justifiability of standards of international judicial review employed by different international courts, the fragmentation of judicial review standards and the justifiability of fragmentation, and the theories that focus on the conditions for the harmonious existence of domestic judicial review and international judicial review.

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29. Legislatures M.J. Peterson

CONSTITUTIONALIST TRADITIONS Any constitution – whether written in a single document or accreted over time in practice (for example, Bagehot 1867) – is prescriptive because it specifies how political power will be wielded, by whom and for what ends. Yet those prescriptions may or may not be guided by a normative conception of the good political order. They may be purely descriptive of what exists – recording and, through that act of recording, reinforcing the current set of rules about who will hold and how they will wield political power. Those rules may ensure basic citizen (or human) rights and specify limits on the scope and extent of government action, but they may also allow for arbitrary rule recognizing no human rights and no limits on scope and extent. Constitutionalist thinkers bring a normative element to bear, insisting that to be worthy of the name a constitution must establish rules that advance certain values. The core of the Western constitutionalist tradition can be traced back to late seventeenth-century and early eighteenth-century Europe, in particular to arguments that granting a monopoly on the legitimate use of force to some central entity capable of imposing peace on all members of society (as advocated by, for example, Bodin 1576; Hobbes 1651) is only the first step in creating a good political order. By itself, such a scheme would not prevent ambitious rulers from gathering all power into their own hands and using it as they please, creating at the national level a system of oppression hardly better than the localized oppression by lords of the manor prevalent in medieval times. Early constitutionalist writers maintained that a constitution must also impose limits on the exercise of political power, limits that they believed were already inherent in divine or natural law. This higher law establishes humans as holders of rights which earthly rulers were bound to respect and uphold (for example, Locke 1698; Montesquieu 1748). As James Madison stated in Federalist Paper Number 51 (1788): ‘You must first enable the government to control the governed; and in the next place, oblige it to control itself.’ This normative constitutionalism has two strands that can pull in different directions. ‘Liberal’ constitutionalism focuses primarily on restraining the exercise of political power through separation and balancing of legislative, executive, and judicial power while also emphasizing the exercise of political power through law – creating a Rechtsstaat, ensuring due process, promoting rule of law, and ensuring respect for human rights. ‘Republican’ or ‘democratic’ constitutionalism focuses primarily on grounding the legitimacy of political rule in a mandate from the people, the citizenry at large. This tradition maintains that a stable political order is possible only when the government enjoys social legitimacy through being seen as emerging from, rather than imposed on, the people. Both liberal and republican/democratic constitutionalism converge in vesting the law-making power in an elected legislature; in actual political practice, the difference between the two are often matters of detail, as is discussed in the introduction to this Handbook (Lang and Wiener, Chapter 1). 424

Legislatures  425 Even during the great power wars of the early to mid-twentieth century and the bipolar Cold War competition of the late twentieth century, constitutional states maintained the principle of legislative responsibility for adopting the laws and controlling public money by defining taxes and allocating revenues to particular purposes in foreign policy as well as domestic domains. Legislatures thus continued to advance both the liberal constitutionalist program of constrained power operating through rule of law by providing the publicly known constitutive, regulatory and consequential rules forming the society’s legal system, and the republican/democratic constitutionalist function of deriving power from the people through elections. In the mid-2000s, several European democracies re-examined and strengthened their statutes requiring legislative approval of decisions to engage in military actions abroad (Damrosch 2015). Twenty-first century definitions of democratic rule continue to emphasize the centrality of both transparency and accountability. Transparency is provided through rules that all statutes, resolutions and other decisions of the legislative body be published in an official journal. The exact definition of ‘publish’ has kept up with technological possibilities: relying on a government office printing press to disseminate paper copies until the wider reach of the Internet allowed posting official journal material to publicly available government websites. Accountability is provided through requirements for periodic and competitive elections in which multiple candidates are allowed to contend for each legislative seat. Different countries run their election process in different ways, but in each the goal is ensuring that legislators’ performance is subject to periodic review and individual legislators subject to the pressure of possible removal. The development of political parties both simplifies and complicates the lines of accountability. Parties complicate, particularly when the electoral system involves proportional representation, because individual legislators are part of a party group and their re-election may depend as much on citizens’ perception of the party as on citizens’ perception of the individual legislator. Parties simplify by providing voters with labels that indicate differences in broad policy orientation among the various candidates. While in some countries elections have become ‘candidate-centered’, in most they remain ‘party-centered’. Yet under either pattern there is more accountability than would exist if legislators were appointed for life or inherited their position. At the national level, the existence of a legislature implies considerable centralization. Even in a federal state, where the constituent subnational units retain certain defined powers and have legislative bodies of their own, the federal (national) legislature still has an independent and overarching realm of legislative authority. The laws it adopts are administered and enforced vis-à-vis the citizenry through national-level administrative agencies, policing agencies, and court systems that exist simultaneously with and operate on a distinct plane from the subnational units’ administrative agencies, police forces, and courts. Except in Europe, centralization still stops at the national level. Though interconnections between societies began growing exponentially with development of steam-powered transportation and telegraph systems in the mid-nineteenth century, the interconnections were not then regarded as so great that global political centralization seemed necessary. Empire-building by certain individual European states brought many lands together administratively and formed them into territorial blocs, but without gathering the populations of the metropole and the colonies into a single political community. Within Europe, coordination of ‘administrative’ and ‘technical’ activities through the Public International Unions, the first generation of intergovernmental organizations, seemed sufficient. While some reformist bureaucrats in the various European capitals saw in them the kernel of what we would now call a functionalist drawing

426  Handbook on global constitutionalism together of different countries (Murphy 1994, p. 88), notions of a world government with a ‘parliament of man’ (Tennyson 1842) remained items of poetic or philosophical imagination. The same could be said in 1945 even after two world wars. Though the first words of the Preamble to the United Nations (UN) Charter suggest that ‘We, the peoples of the United Nations’ are joining together to create a new global order, the last words, specifying that ‘our respective governments, through representatives assembled in the city of San Francisco’ agree to the Charter and establish the organization (UN 1945, hereafter UN Charter), signals the continued centrality of states. The UN Charter also includes provisions strongly discouraging war between states, establishing possibilities of centrally organized collective action against war-initiating states and encouraging third-party settlement of disputes, yet the UN organization remained a forum for discussion and organizing coordination in solution of particular problems rather than a government structure. The international system’s political structure remained a combination of Westphalian autonomous territorial states with multilateral cooperation among them channeled through various agreements and intergovernmental organizations, and the UN organization, like the predecessor League of Nations, an institution fitted to that global-level structure. Yet the immediate post-World War II years were marked by considerable discussion of converting the UN into a world government. Such discussion was sufficiently widespread in the USA to inspire the introduction of several resolutions to that effect in the US Congress (Dean 1950). Though such discussion receded as the Cold War deepened, it continued and soon took on a federalist cast (Clark and Sohn 1966). With the ‘Iron Curtain’ splitting Europe, efforts for change in the Western half focused regionally, with competing proposals for immediate federation (for example, Spinelli and Rossi 1941) and an indirect approach of ultimate federation after economic integration (for example, Mitrany 1944) receiving widespread attention. In the end, the Treaty of Rome (1958) created a European Economic Community based on the latter approach. Discussion of creating a world government had reached such a low ebb in the 1970s and 1980s that even the end of the Cold War – previously viewed as the main obstacle to such a transformation – did not lead to any appreciable move towards recasting the UN as a world government even as proposals for ‘reforming’ or ‘improving’ the UN proliferated (Yunker 2011a). The world remained characterized by what James Rosenau and Ernst-Otto Czempiel (1992) called ‘governance plus government’ at the national level – where capacity to identify problems, design solutions and mobilize cooperation among willing actors is strong and backed up by centralized structures for making and enforcing laws – and ‘governance minus government’ at the global level. The 2008 global financial crisis and rising environmental concerns, particularly over climate change, sparked renewed interest in centralizing at the global level among commentators, nongovernmental organizations and world federalist advocacy groups (for example, Stipo 2007; Cabrera 2011; Yunker 2011b; Leinen and Brummel 2018). Advocates of world government have never spoken with one voice. They have long debated whether the global-level structure of political rule should be a ‘world government’, a ‘world federation’ or a ‘league of peaceful states’. This disagreement appeared even within the late eighteenth-century writings of Immanuel Kant, author of some of the best-known arguments for extending political institutionalization beyond the limits of the territorial state. This reflected Kant’s own sense of facing a dilemma. He was eager to replace the Westphalian system of competing monarchical territorial states with something more peaceful and responsive to the people, but his acceptance of Rousseau’s (1762) claims that political sovereignty

Legislatures  427 is an indivisible expression of the general will of a society led him to regard a world state as likely to be the product of a forced uniformity, an undesirable ‘soulless despotism’ (Habermas 2007, p. 128). Respect for and desire to preserve local particularities led Kant to advocate creation of a league of commercial republics that would anchor global peace among already peace-minded reformed states (Kant 1795). This was a bet that states with a commercial economy and a constitutional political order would relate to one another peacefully and respect each other’s rights and domestic arrangements. The possibility of world federalism did not occur to him, partly because he accepted the notion that sovereignty is indivisible, and partly because the large-scale experiment with federalism then unfolding in North America had been in existence less than a decade when he wrote. Today, however, the league of peaceful states conception is generally regarded as insufficient. Most advocates of international-level constitutionalism agree on three points: (1) the need to replace power politics with a stable, orderly and centrally maintained system of peaceful cooperation; (2) the importance of guaranteeing individual and group rights through global-level institutions capable of enforcing them against rights-abusing national governments; and (3) establishment of a framework of international law capable of assuring sufficient cooperation to effectively address global problems while leaving individual territorial states with room for choice in organizing their internal life within the broad outlines of the global constitutional order. Writers advocating global constitutionalization point to several contrasts between the international law prevailing in today’s multilateralized Westphalian territorial states system and the system of world law needed in a properly constitutional world order (adapted primarily from Giegerich 2009, particularly pp. 44–59). (See Table 29.1.) Table 29.1

A constitutional world government and the current UN compared

Features of a constitutionalist world government

Current features of the UN

separation of government powers

potential only – no clear executive and no provision for judicial review

input, output, and social legitimacy of decision-making bodies

Security Council very weak on all three because of the limited number of states represented and the system of P5 and E10; General Assembly also weak because it does not have true legislative powers

effective guarantees of human rights

not contained within the UN Charter; supplemental multilateral human rights treaties lack strong enforcement systems

multilevel governance (federal-type structure)

present in the design making territorial states the members

institutional homogeneity among units guaranteeing the basics of democracy rule, rule of law, fundamental human rights enforceable on units by the federal level

absent because governments of states retain ability to choose their own domestic order and are not directly obligated to take on human rights obligations or follow rule by law precepts

The institutional features are very clear: there should be a world legislature organized and limited in the same way that national constitutional orders limit the legislative power within territorial states today. One key question for any project of creating a world government is where the kernel of such a legislature can be found today, and quite often the answer is the UN General Assembly since it is the main deliberative body of the world’s only general-purpose intergovernmental organization.

428  Handbook on global constitutionalism

THE UN GENERAL ASSEMBLY Yet the character, composition and authority of the UN General Assembly was constructed in 1943–1945 according to the logic of the multilateralized Westphalian system and remains little changed. Except in the just-emerging discussion of a ‘human rights and fundamental freedoms’ (UN Charter, Art. 1, para. 3, Art. 55(c)) and ‘equal rights and self-determination of peoples’ (UN Charter, Art. 1, para. 2), the territorial state remained the basic political unit. The principles guiding the General Assembly’s composition were those of a world of states: territorial states were the possessors of rights and duties under international law, ‘sovereign equality’ remained one of the primary rights of states (UN Charter, Art. 2, para. 1), and each national government, as legal agent for the state, selected who would represent the state in the General Assembly (UN Charter, Art. 9). Thus the national representatives sent to the General Assembly are a subset of the national diplomatic service, distinguishable from the others over time only as particular governments decided that representing the state in multilateral forums required specialized knowledge. So even though its legislature-like procedures encouraged commentators such as Philip Jessup (1956) to write about the rise of ‘parliamentary diplomacy’, the lines of selection and accountability did not run between representative and population, they ran from representative to executive branch of the national government. The composition of the UN General Assembly also inhibits development of the clearly identifiable parties that function in national legislatures. Though individual states could be classified into groups by general political orientation, this never became the basis of the UN General Assembly’s internal organization. The General Assembly’s Main Committees remain committees of the whole, on which every UN member state has a seat. Seats on smaller councils, committees and other subsidiary bodies remain allocated among the regional groupings of member states in rough proportion to their fraction of the total UN membership, and each regional group typically chose which states’ delegates from among them would fill the allocated seats. Other caucusing also developed more along geographical than along political or ideological lines. That the geographical groupings acquired a degree of ideological coloring was incidental to the Cold War and decolonization. The Cold War meant that the Western European and Other group encompassed the core of the USA-led alliance system while the Eastern European group encompassed the core of the USSR-led alliance system. As decolonization proceeded, the African and Asian regions came to represent the newly independent countries. While the Latin American and Caribbean countries seemed to be anchored more closely to the West in the 1950s, they moved over time toward the African-Asian countries. Thus by 1970 the UN General Assembly appeared to reflect the then-prevailing ‘three camp’ division of the world into East, West and Nonaligned. There were always some ambiguities around the edges, with Soviet-aligned Cuba claiming to be a good member of the Nonaligned, and Maoist China expressing more connection to the developing world than to the Soviet bloc, but the main division seemed accurate enough. All this changed with the end of the Cold War. The line between Western and Eastern Europe was erased, with much of Eastern Europe joining the North Atlantic Treaty Organization (NATO) or the European Union (EU). The USSR became Russia. China remained a single-party state led by a Communist Party, but one very busy developing something other than a Leninist centrally planned economy at home and, although still expressing identification with the developing world, widely perceived elsewhere as an emerging great power likely to acquire great power habits.

Legislatures  429 The General Assembly also lacks law-making authority outside of decisions regarding the internal structuring and operation of the UN organization. Proposals to give the General Assembly wider legislative authority were rejected at the San Francisco Conference (Russell 1955, pp. 754–76), and even international lawyers sympathetic to the idea of giving the General Assembly wider authority have stopped short of claiming that it has already acquired it (for example, Schachter 1963, pp. 184–6; Falk 1966, pp. 790–1; Elias 1972, pp. 71–6; Sohn 1973, pp. 50–3). Governments have generally avoided suggesting that the General Assembly has significant legislative authority. Though some governments seeking to discourage others’ unilateral decisions about deep seabed mining in the late 1970s and early 1980s tried to base arguments that such behavior is illegal on the General Assembly’s Declaration of Principles governing the Seabed and the Ocean Floor, and the Subsoil Thereof (Resolution 2749 (XXV)), they shifted to using the UN Convention on the Law of the Sea as soon as its text was finalized in 1982 (Peterson 1986, pp. 142–3). Some elements of the General Assembly’s limited authority have been eroded over time. Article 17 of the UN Charter specifies that the General Assembly will determine the UN budget and levy assessments on the member states, but governments have been careful to limit its financial ambitions through de facto adoption of a consensus rule for budget and assessment decisions that keeps the budget at the level set by the least willing members. More willing members have found ways around this, but the systems of voluntary contributions thus developed further weaken notions that the General Assembly determines the budget. Rather, the result has remained much as British Prime Minister Harold Macmillan explained in 1961: ‘There is the compulsory subscription and the voluntary subscription. The only difference between them is this. The compulsory is the one that you do not pay if you do not want to, and the voluntary is the one you need not pay unless you wish to’ (UK Parliamentary Debates 1961). More tellingly, the only efforts to subject resolutions of a UN body to judicial review were inspired by the Security Council’s effort to have members impose criminal punishments on individuals and organizations supporting terrorist activity by establishing a consolidated list of such persons and organizations identified by its sanctions committees1 – most notably in European Court of Justice (2008). The judgments did not rule directly on the legality of action by the Security Council or its terrorism-monitoring 1267 Committee, but did hold regional or national authorities responsible for respecting the human rights requirements prevailing within their own jurisdictions. Some international lawyers have sought to expand the substantive reach of the General Assembly’s authority to make decisions that bind UN member states through generous interpretations of ‘implied powers’ deriving from its mandate to determine the UN organization’s internal functioning (for example, Seyersted 1963). However, these arguments are not generally accepted. Other international lawyers advance less expansive interpretations, anchored in what constitutional lawyers might call ‘strict construction’ of the UN Charter, adhering more closely to the 1945 vision of the General Assembly as a forum for debate and development of recommendations that member states might then incorporate into international law through a multilateral treaty or into their own national law through their domestic law-making process.

1 System explained at https://​www​.un​.org/​securitycouncil/​content/​un​-sc​-consolidated​-list (accessed 2 July 2023).

430  Handbook on global constitutionalism The continuing gaps in the UN Charter as a constitution in the normative sense have also been acknowledged (for example, Crawford 1997; Alvarez 2005). Protections of human rights in the UN system remain weak and subject to the pushes and pulls of political pressures. Efforts to reel in the governments most abusive of the populations under their rule under the concept of Responsibility to Protect have been halting. The UN lacks any autonomous revenue stream; proposals that a tax on cross-border financial flows proposed as a mechanism for funding economic development have not been adopted in the UN or by the G20 (Wroughton 2011).

CREATING A GLOBAL CONSTITUTIONAL ORDER Advocates of creating a global constitutional order recognize and propose remedying all three shortcomings. They have offered proposals for restructuring the legislative part of the UN organization to erase the ‘democratic deficit’ stemming from its character as a forum for representatives sent by the executive branch of national governments. They have offered ideas about bridging the gap between one-state-one-vote and one-person-one-vote as a basis for legitimating legislative authority. They have pointed to areas where they believe international tribunals are succeeding in ‘constitutionalizing’ certain areas of international relations through compulsory and binding third-party settlement of disputes and urged that similar developments should occur in other areas of international relations. The European Parliament suggests one way to restructure to connect the world legislature to the world’s people: have the citizens of each member state elect a number of legislators proportional to their share of the world’s total population. Many proponents of world government suggest a bicameral solution for the UN, with the current General Assembly becoming an ‘Assembly of States’ operating alongside a new ‘Assembly of Peoples’ (for example, Heinrich 1993; Havel 2000; Stipo 2007). While the idea of electing in proportion to population is attractive in democratic theory, where equal individuals should all have equal voice, two considerations inspire hesitation today. First, equal voice extended to the global level would yield an assembly of peoples dominated by East and South Asians. Some might find this uncongenial unless a global analog to the European Parliament system of transnational party groupings also developed. Party groupings would create cross-cutting cleavages – at least to the extent that political divisions did not parallel cultural divisions – a condition political sociologists regard as better for a constitutional order than a society riven by a single major cleavage or some set of reinforcing cleavages (for example, Lipset 1960). Second, the firm authoritarianism of China, Russia and some other states plus the increasing authoritarianism of India, Brazil and other states (V-Dem Institute 2023), where elections do not reflect an authentic popular choice and which now include at least 72 percent of the world’s population, would provide global-level reinforcement of authoritarian trends. Others proposals seek to avoid these problems by suggesting the creation of bodies in which civil society participants would be selected from ‘major groups’ (such as youth, women or farmers) rather than by state of citizenship (for example, Commission on Global Governance 1995). However this suggests a functional basis for composing a legislature that has not been adopted at the national level and is in tension with democratic theory by foregrounding one particular aspect of any individual’s life.

Legislatures  431 Efforts to convert the existing UN General Assembly into a unicameral global legislature would necessitate revising its current form from the one-state-one-vote and simple majority decision-making rules (UN Charter, Art. 18). As foundations for legislative legitimacy, these rules suffer from two shortcomings. First, they diverge to the point of direct contradiction with the democratic maxim of one-person-one-vote by giving the fewer than 100,000 citizens of Dominica or Vanuatu the same representation as the more than 1.5 billion citizens of China or India. Second, unless also changed, the voting rules would permit a large group of relatively small states to oblige a small set of much larger states to undertake activity that the latter can frustrate by inaction. Developing voting rules that would provide a basis for binding global legislation has inspired a considerable range of proposals. One proposal, for creation of new UN councils to address sustainable development, environmental cooperation and management of areas outside national jurisdiction (high seas, deep seabed, Antarctica and outer space) rather than a comprehensive global legislature, suggested establishing a 50-member decision-making group – one representing each of the G20 states ‘as the countries that are indispensable for any solution to be implemented’, another 20 representing smaller countries selected on a regional basis, and ten representing civil society groups (Biermann 2012). Others suggest going further than the UN Charter requirement that ‘important questions’ be decided by a two-thirds majority by proposing a system of concurrent majorities (for example, Hudson’s 1981 ‘binding triad’ – a majority of member states having a majority of world population and paying for a majority of the UN budget), a general weighted voting rule (for example, Schwartzenberg 2005) or a set of varying special majorities depending on the issue at hand (Biermann 2014). However, most proposals discard the one-state-one-vote practice of the existing General Assembly in other ways. Any of the bicameral proposals imply using concurrent majorities of states and world population, establishing a decision-making rule similar to that prevailing within most federal states – and even in the EU if we consider its Council as the chamber of states and its Parliament as the chamber of peoples. The prospects for extending effective systems of rule by law or Rechtsstaats to more countries looked quite bright between 1991 and 2008 (third wave of democratization) The global human rights advocacy movement, which had begun to take hold in the 1970s, leapt to a notably higher level of activity. Prospects for returning to the design of the Universal Declaration on Human Rights (1948) by undoing the split between treaties incorporating civil and political rights and treaties incorporating economic, social and cultural affairs seemed bright as discussion of the indivisibility of rights gained ground (Burke 2010). There was a spate of constitution-writing as democratic rule spread, not only in Eastern Europe and Central Asia, but also in South Africa and other states emerging from long periods of undemocratic rule. The excesses of the Cultural Revolution era inspired a strong desire in China for new norms of ‘socialist legality’ that would provide more consistent and less arbitrary procedures among Chinese lawyers and officials in the early 1980s, and these efforts continued as China pursued its ‘Four Modernizations’. In the late 1980s and early 1990s lawyers in many countries contributed time and resources to programs for helping judges, prosecutors and defense attorneys in countries emerging from authoritarian rule learn new conceptions of their roles and apply rule of law or Rechtstaat norms in their own countries (Tamanaha 2004; Heckman et al 2010). Emergence of an entirely new branch of international law – international criminal law – led to the establishment of the International Criminal Court to impose individual responsibility on planners, organizers and perpetrators of mass murder and major violations of the laws of

432  Handbook on global constitutionalism warfare (ICC Rome Statute 1998, Art. 1). The possibility of a new approach for international response to severe domestic misrule was expressed in the notion that sovereignty includes a Responsibility to Protect (Evans and Sahnoun 2002; UN General Assembly 2005).

CURRENT PROSPECTS Today the prospects for creating a true world legislature and institutionalizing it according to liberal and republican constitutionalist principles look less bright than they did in the mid 2000s. The governments of the world’s territorial states show no inclination to yield any power to a global center, and they are not under any significant pressure from their populations to do so. Academic and activist commentators are using the challenges posed by global atmospheric warming and increased interconnection among societies to argue the need for world government, but their words receive little attention. Even in Europe, the one continent where a degree of political centralization spanning state borders seemed to be expanding, signs of lower enthusiasm for the EU have multiplied – as revealed most vividly in debates preceding the June 2016 British referendum on whether to remain a member and in the ongoing contentions between the main EU bodies and the governments of Hungary and Poland over the increasingly authoritarian measures adopted by the latter (recent developments in Greminger 2021). One expert on the EU’s politics has pointed out that the decision-making rules of the Council and the Parliament require a level of agreement higher than prevails in any of the member states or in other democratic states around the world (Moravcsik 2002, p. 609). Continuing economic woes and rising immigration have revived right-wing nationalist parties and inspired more ‘Euroskepticism’ than prevailed in the 1990s (Stokes 2016). While the ‘new sovereigntists’ (for example, Rabkin 2005; Bolton 2007; Ku and Yoo 2012) whose ideas dominated the George W. Bush (‘Bush 2’) administration’s perceptions of international law and cooperation through international organizations had less influence over US policy under the Obama administration, their ideas continued to resonate with a considerable portion of the population. The Trump administration rejected even the less ambitious multilateralization of the territorial states system through a series of actions intended to block cooperation on climate change or management of the Covid-19 pandemic and to weaken existing intergovernmental organizations (Lake et al 2021, pp. 244–5). The Biden administration has reversed most of these measures, but Trump’s support base remains large enough that the future course of US policy is uncertain. While domestic political systems in some states have evolved towards greater respect for human rights and rule of law, evolution in other countries has been in the opposite direction (Monshipouri et al 2003; Bunce et al 2009; Stacher 2012). The idea that human rights are ‘universal values’ has been challenged by governments and writers in East Asia (see Subramaniam 2000) and the Middle East (Cairo Declaration 1990; also see Mayer 2012) on grounds that current formulations of human rights – including those institutionalized in the UN human rights system – reflect Western notions that do not conform to the core beliefs of their own cultures. East Asian respect for rule of law and acceptance of judicial review does not extend in all countries to reviewing government acts for compliance with human rights norms (Ginsburg 2003). Even the idea of establishing a Responsibility to Protect has been weakened by disagreements over when and how to implement it (Welsh 2019). Though most authoritarian governments pay symbolic respect to republican or democratic constitutionalist norms by

Legislatures  433 creating elected legislatures and holding periodic elections to choose their members, adherence to liberal constitutionalist norms regarding legislative powers, respect for fundamental rights and assurance of fair process is often much weaker. Decisions in the West, particularly by the Bush 2 administration in the US, trimming rights in the name of dealing with threats from terrorists facilitated government use of anti-terrorist rhetoric against domestic opposition elsewhere. Complaints in Western countries after the global financial crisis that the ostensibly democratic rule was merely a façade for an oligarchy of wealth (for example, Domhoff 2013), can also be used to diminish the attractiveness of Western constitutionalism in other parts of the world. The net result is a new climate in which the Chinese government is fully willing to remind everyone of its self-description as a ‘people’s democratic dictatorship’ (Constitution of the People’s Republic of China, Art. 1) in its international pronouncements as well as in such domestic contexts as its current internal security law (People’s Republic of China 2015, ch. 1, Art. 1). The transition to constitutionalism within territorial states rested on two developments: enough political centralization to create a national government capable of enforcing rules throughout the territory and sufficient strength of the social actors pressing for both democratic and liberal elements of constitutionalism that a truly constitutionalist order emerged. Yet it is sobering to consider that the move from centralization to constitutionalism was halting, limited to some countries, frequently hedged by incomplete realization (as in continuation of discrimination by race, religion or ethnicity), and often reversed. A global constitutionalist order is not the only possible future. Some fear that the future is instead one of ‘neoliberal’ rule by a global capitalist elite (for example, Rothkopf 2008). Others suggest it will involve development of a networked empire without a clear political center (Hardt and Negri 2000). A few have suggested the world will become a multipolar system of cooperation among great powers acting as hegemons within their respective regions, notions echoing some of Carl Schmitt’s ideas about regional subsystems each run by a within-region leading state and immune from intervention by extra-regional powers (1941[1991]). Arguments within current discussions of constitutionalism that the term ‘constitutionalism’ should not be limited to the liberal and republican form that first emerged in the eighteenth century, but should be extended to cover others as well, also suggest various futures, organized by principles of populist (Belov 2021) social democratic (Guy 2012), plurinational (Tierney 2005), Islamic (Quraishi-Landes 2015), or Asian communitarian variants (Pinelli 2017, p. 14). Yet unless the transnational coalition of constitutionalist individuals, groups, and advocacy coalitions is sufficiently strong, moves toward greater global centralization could easily result in a world run by a small elite disconnected from, and therefore not needing to be concerned with, most people even if it maintains a pseudo constitutionalism continuing the outward expression but not the actual content of a constitutionalist approach to political order. The politics of establishing a liberal and republican constitutional order at the global level remains what Max Weber (1919[1946], p. 128) observed of politics within territorial states: ‘the strong and slow drilling of hard boards’.

REFERENCES Alvarez, J. (2005), International Organizations as Law-Makers, Oxford and New York: Oxford University Press. Bagehot, W. (1867), The English Constitution, London: C. Kegan Paul.

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30. Executive and exception William E. Scheuerman

What we typically describe as the executive (head of government, state administration, military and police) is both necessary to and potentially destructive of global constitutionalism. As with nation-state constitutionalism, a viable global constitutional order requires effective legal sanctions. Constitutionalism entails coercive order in the sense that those who violate the law must potentially face measures by means of which certain possessions (for example, life, health, freedom or property) can be taken ‘from the individuals in question against their will, if necessary by the employment of physical force’ (Kelsen 1945[1961], p. 19). This certainly ‘does not mean that in carrying out the sanction physical force must be applied’ (Kelsen 1945[1961], p. 18, emphasis added). Nor does it perhaps require a world state envisaged as a centralized agency in possession of a monopoly on legitimate force; we can disagree about whether or not effective global-level legal sanctions demand such a state. Yet as that institution directly tasked with putting legal sanctions into effect, the executive unavoidably plays an indispensable role, at both the national and global levels, in upholding constitutional norms and procedures. This raises complicated questions about how we should conceive the global executive, where it can be located and whether it might function to support rather than undermine nascent global constitutionalism. As the messy and sometimes ugly history of constitutionalism within the modern territorial state suggests, the executive often works to undermine legal and constitutional restraints. Because of its intimate ties to the state’s instruments of coercion, the executive possesses power resources which invite violations of the rule of law and separation of powers. Particularly during moments of crisis the dangers are most pronounced. Throughout history, executives have claimed special or exceptional legal powers, constitutionally based or otherwise, when faced with (real or imaginary) emergencies. Their efforts have often taken discretionary and even arbitrary forms inconsonant with the rule of law and separation of powers. Not surprisingly, much of the history of modern constitutionalism has been preoccupied with the task of taming and perhaps (partially) civilizing the executive by legal means. Prior to the twentieth century, emergencies were typically associated with episodes of extensive ongoing political violence (war, for example, or civil war). During the twentieth century, however, both domestic and international law embraced an expansive definition of the emergency to cover economic crises, health epidemics, environmental or natural disasters, terrorism, and other events perceived as constituting major threats to public security (Gross and Aolain 2006). This broadened conception of the emergency is crucial for making sense of recent global legal developments. Views about the executive and its relationship to the exception or emergency remain sharply divided. Special problems are also posed by the transplantation of conventional notions of the executive and exception, which first emerged in the context of the modern territorial state, to the postnational or global setting. Nonetheless, we can be reasonably sure that any attempt to establish global constitutionalism will have to grapple with the familiar task of taming executive and especially emergency executive action. Preliminary evidence suggests that much 437

438  Handbook on global constitutionalism remains to be done: new forms of postnational emergency governance exercise substantial and probably unacceptable discretionary authority.

COMPETING ACCOUNTS There is no consensus among political and legal theorists about how best to define the ‘executive’ or ‘exception’, or about how properly to understand the nexus between them. Yet we can still discern the basic outlines of two competing and sharply contrasting approaches. The first approach can be loosely described as decisionist.1 Although its defenders conceive the executive as responsible for enforcing or putting law into effect, they focus on the law’s limitations in providing meaningful guidance. On this account, even seemingly uncontroversial implementations of the law are characterized by substantial discretion. Portrayals of the executive as mechanically applying general legal norms do a disservice to the creative, flexible and open-ended character of its endeavors. Typically, this view is closely connected to a depiction of political life more generally as plagued by potentially perilous accidents and contingencies, including the looming specter of life-or-death crises or emergencies that strain the usual legal and constitutional mechanisms. Those who embrace this account are also often skeptical about the prospect of a far-reaching legalization or constitutionalization of global politics, an arena they tend to see as regulated by irrepressible power struggles for which normal legal and constitutional mechanisms are poorly suited. The decisionist account certainly need not ignore the rule of law or separation of powers altogether. However, it worries that unrealistic overstatements of their accomplishments underplay the challenges posed by the legal exception and the corresponding need for far-reaching executive prerogative. Theorists who embrace this model often look back nostalgically to early modern political thought, and especially to political realists like Machiavelli, Hobbes and Alexander Hamilton, in part because of their tendency to blur the conceptual boundary between ‘executive’ and discretionary ‘prerogative’ (Fatovic 2013; also, Mansfield 1993). On this view, the executive and exception are inextricably interconnected. The latter’s pervasiveness demands that the former garner a robust as well as institutionally suitable form. This model highlights the virtues of what Hamilton famously described as the executive’s capacity for ‘decision, activity, secrecy, and dispatch’ (Publius 1788[1961], p. 424). The decisionist underscores the necessity of flexibility and expeditiousness, both of which are always at a premium since the executive regularly faces new and sometimes unprecedented challenges. The executive is depicted as ideally operating according to a specific temporality: in order to tackle immediate or pressing challenges, it needs to be fast-moving or high-speed in contrast to the lumbering pace of legislatures and courts (Scheuerman 2004). Since exceptional situations are commonplace, and so many of them prove threatening, this view generally goes hand in hand with a quest to outfit the executive with the requisite institutional ‘firmness’ or independence. Its defenders tend to favor a presidential over parliamentary executive, in part because

1 The terms ‘decisionist’ and ‘normativist’ were regularly used by Carl Schmitt. I do so here differently, however, in a number of ways, chiefly because my intentions are opposed to Schmitt’s: the function of the conceptual distinction is not to discredit constitutionalism or the rule of law by caricaturing ‘normativism’ and justifying an authoritarian version of ‘decisionist’ rule.

Executive and exception  439 of power advantages allegedly accruing to the executive when possessing autonomous power resources and an independent source of political legitimacy (Schmitt 1931). The contrasting model can be described as normativist. According to this view, the executive works alongside the judiciary to apply and concretize general legal norms, whose creation is chiefly though not exclusively left to the legislature. No principled difference between executive and judicial action can be identified: both simply individualize general legal norms, albeit in somewhat different ways and via alternative institutional channels. The executive and judiciary represent ‘different stages’ in a complicated process by means of which the general law is realized (Kelsen 1945[1961], p. 258). Executive action certainly can and often does contain highly creative moments; normativists need not endorse a mechanistic view of legal enforcement or implementation. Yet even when the executive exercises discretion its acts possess an identifiably legal character. During ‘special circumstances’ such as ‘war, rebellion, or economic crisis’, for example, constitutions often place special powers in the hands of the executive (Kelsen 1945[1961], pp. 270–1). Emergency executive discretion simply shows that the executive ‘can be capable of regulating matters that, as one says, have not before been regulated either by statute or by customary law’ (Kelsen 1945[1961], p. 271). According to Hans Kelsen, perhaps the most important theorist of executive power in the normativist camp, ‘if there is any legal order at all, consisting of statutory or customary law’, even seemingly free-wheeling executive action can be plausibly interpreted not as troublesome evidence for the existence of a legal ‘black hole’, but instead as a potentially constructive contribution to law’s creation and application (Kelsen 1945[1961], p. 271). Not surprisingly, the normativist tends to downplay those special and sometimes ‘personalistic’ traits the decisionist pictures as vital to executive power. He or she may still envision the executive as possessing a distinctive temporal orientation: in contrast to the prospective legislature and retrospective judiciary, the executive focuses on enforcing and implanting law in the present (Möllers 2013, pp. 96–101). Yet nothing about the core of executive power calls for an unusual or extraordinary capacity for ‘decision, activity, secrecy, and dispatch’. Since the executive is depicted primarily as cooperating alongside the legislature and judiciary in creating and applying law, there is also less preoccupation here with guaranteeing institutional independence and an autonomous source of power and legitimacy. Many normativists prefer parliamentary over presidential democracy. The normativist hardly denies the existence of political accidents, contingencies or life-threatening emergencies. Yet she views them as matters that can be effectively subject to legal regulation. Correspondingly, the normativist tends to be more hopeful about the prospects of far-reaching legalization and constitutionalization. On this account, there is no qualitative distinction between domestic and international law (Kelsen 1942). Normativists also generally presuppose a more rationalistic (and less dangerous) view of politics than his or her estranged decisionist cousin. This is not the place to debate the pros and cons of these two admittedly stylized and ideal-typical views of executive power. For many reasons, the normativist position meshes well with the aspiration for global constitutionalism. Nonetheless, it would be hard to deny that the competing decisionist perspective captures some unsettling attributes of real-life political experience. Any account of global constitutionalization that simply ignores the dilemmas posed by executive discretion – and emergency power – is certain to prove unsatisfactory. Constitutionalism and effective emergency power can successfully coexist, notwithstanding the extreme views of theorists like Carl Schmitt, who saw them as fundamentally incompatible

440  Handbook on global constitutionalism (Scheuerman 2016). Yet making sure that global constitutionalism checks rather than simply uncorks emergency executive discretion remains a formidable challenge.

GLOBALIZING THE EXECUTIVE AND THE EXCEPTION Whether it makes sense to transplant familiar notions of the executive and exception to the postnational or global setting remains controversial. At the very least, the attempt to do so raises tough questions. Conventional ideas about the executive emerged in the context of the modern territorial (and, especially, nation) state, widely viewed as resting on a high degree of legal integration and a common political identity. Such ideas also assumed that the executive was one institutional site within a broader tripartite separation of powers which, in turn, was commonly envisaged as one of the modern state’s fundamental organizational principles. Another implicit presupposition was that the executive would possess ready access to the territorial state’s arsenal of power and coercive instruments (the military and police), seen ideal-typically as being organized in a centralized and hierarchical fashion, and financed through taxation. Even today, the executive is sometimes characterized as the institutional core of a modern state defined primarily in terms of its monopoly over coercive power (Cameron 2013, pp. 34–9). At the global political level, however, it is hard today to claim that we can readily identify state or even well-developed state-like structures, let alone a transparent tripartite separation of powers. The legitimate capacity to enforce the law and when necessary mobilize coercive power rests in the hands of a variety of institutional players (for example, the United Nations Security Council and powerful states). Political and legal integration remain less intensive than at the level of many territorial states. Legal sanctions are not upheld as consistently or predictably as transpires within national borders. Far too often, powerful states and other privileged global actors circumvent or even ignore the law. In the aftermath of the 9/11 terrorist attacks, for example, the US engaged in egregious violations of fundamental rights (most infamously, the prohibition on torture) classified as non-derogable under international human rights treaties to which it was a party. Yet it has never faced any meaningful legal sanctions. Even if the global order has been subject to far-reaching legalization, the ‘big boys and girls’ in the (global) ‘neighborhood’ still too often play according to a different set of rules. Some proponents of a monistic conception of global constitutionalism interpret the United Nations (UN) Charter as the basis for a unified worldwide constitutional order (Fassbender 2009). Sometimes they also picture the Security Council (SC) as the apex of a global-level executive. However, the SC today does not operate like most national executives. Although executives everywhere are institutionally complex and differentiated, within many territorial states their activities tend to be more centralized and administratively coherent. The SC, of course, grants a veto to each of its five permanent member states and, because it relies on their voluntary support for UN peacekeeping operations, it lacks the direct access to coercive power national executives enjoy. As even sympathetic observers have pointed out, the UN executive and administrative machinery is plagued by extreme decentralization, messily overlapping institutional jurisdictions, and an underdeveloped civil service (Weiss 2009). Even if similar trends characterize national executives, they remain more pronounced at the level of global political institutions such as the UN.

Executive and exception  441 When we turn to the most developed postnational political and legal system, the European Union (EU), ‘there is no single, comprehensive and unitary European executive institution or body’ (Curtin 2014, p. 6). Executive power there takes a similarly complex, decentralized and variegated character. ‘Executive actors and administrative constellations transgress levels of governance and national borders’ in historically unprecedented ways (Curtin 2014, p. 5; also, Slaughter 2004). The EU executive offers up an unwieldy institutional mix, with the European Council, European Commission, and national executive and administrative bodies responsible for enforcing and implementing EU-wide decisions composing some of its key components. Yet the 2008 financial crisis also strengthened the European Central Bank and resulted in some major political decisions being made outside formal political and legal channels (White 2019). The EU’s response to the COVID-19 crisis has followed a similar path (White 2021). In the UN and EU, as in many other areas of postnational decision-making and enforcement, executive power seems chameleonic, dispersed and surprisingly fragmented. Even when successfully implementing the law, executive power ‘beyond the nation state’ does so absent a high degree of institutional centralization or formal hierarchy. We should be skeptical of idealized models of the national executive that overstate its administrative coherence and ability to implement law regularly as well as expeditiously. Nonetheless, executive authority appears to take a different – and far messier – form globally than nationally. We need to break with traditionalistic images of ‘the executive’ as a single, hierarchically structured ‘body’, able to exert its will in a direct and expeditious manner. Problematically rooted in early modern monarchist political theory, such images get in the way of constructive thinking about the executive at the national level (Scheuerman 2005). They prove even more troublesome in the postnational or global political context. Analogous dilemmas are potentially generated by transferring standard ideas of a legal exception or emergency to the global context. In domestic constitutionalism, the emergency is associated with sudden, unpredictable and potentially existential crises, in sharp juxtaposition to the ordinary or normal operations of political orders otherwise characterized by peace and stability. Legal and constitutional codifications of emergency power are predicated on the intuition not only that ‘normal’ or ‘ordinary’ law represents the general rule to which emergency situations offer an unfortunate and perhaps tragic exception, but also that normal and exceptional scenarios can be neatly delineated, both spatially and temporally. On this traditional view, foreign or international politics, where the need for executive crisis management is relatively extensive, can be cleanly separated from domestic politics, where the rule of law reigns supreme. In addition, emergencies represent fast-moving yet temporary challenges that can be managed successfully to rapidly re-establish and return to legal normalcy. These spatial and temporal assumptions seem increasingly unrealistic (Gross and Aolain 2006, pp. 171–244). In the context of intensified globalization, the myriad (economic, epidemic or health-related, natural and political) crises law is supposed to tackle are increasingly postnational or transboundary in nature, meaning that they play ‘out at the transnational level, affecting more than one member state at the same time’ (Boin et al 2013, pp. 9–10). Grappling with them calls for ambitious and unprecedented coordination between and among nation states and new types of postnational crisis action. One direct consequence is the recent proliferation of claims to emergency authority among major international organizations (IOs). In the face of what are widely perceived as dire crises outstripping national regulatory capacities, IOs have developed political and legal mechanisms for ambitious emergency action; some have

442  Handbook on global constitutionalism recently exercised highly contentious forms of discretionary power (Kreuder-Sonnen 2019; Kreuder-Sonnen and Zangl 2015). We find, in short, a great deal of evidence for what Craig Calhoun has astutely described as an increasingly ubiquitous ‘emergency imaginary’ in global political thinking, according to which pressing challenges are socially constructed as dire emergencies in need of effective global management. Calhoun’s worries about this imaginary allow us to see why the temporal presuppositions of the traditional model are now also suspect. He notes that some so-called emergencies (for example, humanitarian or complex emergencies) in reality represent ‘gradually developing, predictable, and enduring clusters of events’, many of which are recurrent and structurally rooted in core components of the global status quo (Calhoun 2004, p. 376). By no means do they constitute temporary exceptions to some fictional state of political and legal normalcy. On a planet where political violence, social misery and horrific injustice and exploitation remain commonplace, the ‘exceptional’ situation too often seems ‘normal’ or at least more-or-less permanent, at least from the perspective of those forced to suffer its ills. The tendency to describe structurally rooted political and social ills as ‘emergencies’ obfuscates their underlying causes and downplays the need for arduous and time-consuming political and social action. Too often, the emergency imaginary plays into the hands of powerful global players who prefer quick top-down – and often highly militarized – managerial fixes. Where legalization and constitutionalization remain underdeveloped, as arguably remains the case in the global arena, any categorical distinction between the norm and the exception will necessarily seem problematic. Nonetheless, there remains at least one reason for continuing to rely, albeit self-critically and reflexively, on notions of a legal exception or emergency: international law already does so. Most prominently perhaps, global and regional agreements on human rights – including the International Covenant on Civil and Political Rights (ICCPR), African Charter on Human Rights, American Convention on Human Rights (ACHR), Arab Charter on Human Rights, and European Convention on Human Rights (ECHR) – regulate possible emergency situations, first, by clearly delineating between human rights which can never be suspended from those subject to possible derogations and, second, by codifying procedures participating states are expected to follow when pursuing derogations. Although the details vary, and despite some variations in terminology and practice, the general pattern across the agreements seems clear enough. First, they typically specify some core non-derogable rights (for example, the ECHR’s prohibitions on torture, servitude, and slavery, retroactive criminal law, and its guarantee of a right to life), while announcing rights subject to derogation (for example, free expression, movement, the right to assembly). Second, they generally outline procedures member states are expected to follow in order to justify rights derogations during an emergency (Swensson-McCarthy 1998). On a sympathetic reading, such legal instruments implicitly infer the possibility of constructing a global legal order in which the legal advantages of something akin to the ‘normalcy’ of the rule of law would accrue not just to those residing in rich, powerful and secure states, but to people around the world presently subject to arbitrary power.

POSTNATIONAL STATES OF EMERGENCY Unfortunately, a substantial body of critical scholarship suggests that we remain some distance from a global constitutional order where the rule of law and separation of powers are firmly

Executive and exception  443 ensconced. As postnational emergency powers undergo far-reaching institutionalization, the main result appears to be the proliferation of discretionary and arbitrary power, now placed in the hands of a confusing panoply of international and supranational institutions. Critical commentators understandably worry that the emerging global legal order includes too many ‘authoritarian sub-orders’ where increasingly intrusive legally unchecked emergency power gains the upper hand (Kreuder-Sonnen and Zangl 2015; also, White 2019). The situation is further complicated by the fact that global executives lack some conventional institutional attributes and are insufficiently hemmed in by a well-functioning separation of powers. If we envision global constitutionalization as checking the prospect of arbitrary executive power, rather than simply providing it with a superficial legal veneer, there are legitimate reasons for concern. The UN SC, in apparent violation of the UN Charter and its usual operating procedures, responded immediately to the 9/11 terrorist attacks by promulgating what were effectively far-reaching legislative measures member states were uniformly required to heed. Not only did the SC employ the cover of a terrorist ‘emergency’ to appropriate legislative authority, but the measures in question carved out what amounted to a realm of unchecked prerogative (Hood 2015). Crucial to the new legal regime was a blacklist where those placed on it faced severe and sometimes devastating sanctions, yet were denied basic due process and a right of appeal. (Only with the creation of an ombudsperson in 2009 did the UN finally provide them with some minimal legal protections.) According to some commentators, the SC’s counterterrorism measures entailed a basic constitutional reordering of the UN system (Cohen 2008; Kreuder-Sonnen 2012). They also had a profound impact on national executives, which embraced the measures in part because they allowed executives to augment their institutional position vis-à-vis national legislatures and courts (Scheppele 2006). On this view, the SC effectively exploited the global ‘emergency imaginary’ to remix the fundamentals of the UN system and the balance of power between political institutions within existing territorial states. Evidence from the SC’s recent non-proliferation policies suggests that this disturbing pattern is being reproduced elsewhere as well (Joyner 2012). For its part, in recent years the EU has developed noteworthy institutional capacities for crisis management (Boin et al 2013). Unfortunately, trends there as well pose challenges for global constitutionalization. Political leaders responded to the 2008 financial meltdown and subsequent ‘Euro crisis’ by announcing controversial emergency economic measures that violated longstanding legal procedures and mechanisms (Menendez 2013; White 2019). European-wide emergency economic government relied extensively on ad hoc and legally dubious top-down executive measures while demoting ordinary deliberative and lawmaking channels. Here as well, a complex and oftentimes messy system of postnational emergency power strengthened the hand of some executive-level actors and helped shift the national-level balance between the executive and legislature. In those member states receiving bail-outs and other forms of financial support, parliaments were forced to fast-track contentious austerity measures, with some legislation providing a carte blanche to government ministers to issue decrees regulating a vast arena of social and economic matters. Favoring ‘unscripted modes of rule’, and providing a panoply of powerful political players with ‘plenty of scope for working around the norms of the core institutions’, the EU response to the COVID-19 has followed a similar path. As in recent European economic and fiscal emergencies, the COVID health crisis has entailed jettisoning general rules for broad discretion exercised in ‘flexible’ but not always transparent ways (White 2021, p. 79).

444  Handbook on global constitutionalism Finally, as already briefly noted, major IOs have garnered substantial exceptional or emergency authority to combat transboundary crises. The World Bank has developed institutional mechanisms for ‘rapid bank responses’ to a host of emergencies, financial or otherwise, while the World Trade Organization (WTO) confronted the 2008 financial crisis with measures its Director General and Secretariat pursued without a clear mandate from member states (World Bank Operations Policy and Country Services 2007; Pauwelyn and Berman 2009, pp. 511–12).The World Health Organization (WHO) also appeared to be undergoing an undeniable augmentation of its emergency authority in the aftermath of a series of major health epidemics (HIV/AIDS, SARS) (Hanrieder and Kreuder-Sonnen 2014; Heath 2015, 2021). However, in the wake of the COVID-19 pandemic, defensive Chinese authorities withheld crucial health data from WHO scientists, while authoritarian populists such as US President Donald Trump took formal steps to withdraw from the WHO and slashed US financial contributions. Although Trump’s successor, President Joseph Biden, immediately reversed these moves, they remain a vivid reminder of the continued dependence of effective IO emergency action on powerful nation states. Although the empirical details are complicated, the general pattern seems straightforward enough. In the face of major transborder policy challenges, key global institutions and players tap into the emergency imaginary to pave the way for an expansion of discretionary authority, particularly when they see potential political or institutional advantages in doing so. Not surprisingly, inconvenient yet arguably dire scenarios unlikely to work to their political or institutional advantage, or where powerful global players are sure to block action, tend to get neglected. Non-nuclear states, for example, would never succeed in declaring the refusal of the major nuclear powers to disarm a security ‘emergency’ requiring forceful UN intervention. On a planet plagued by stunning political and social inequalities, not all ‘emergencies’ are created equal. In turn, institutional players, especially when they can plausibly claim some success in countering the challenges at hand, then regularize and sometimes codify new emergency mechanisms, which in turn provide institutional actors with a basis (and perhaps also an incentive) for future emergency interventions (Hanrieder and Kreuder-Sonnen 2014). The complex and variegated structure of present-day global executive authority simultaneously mitigates and aggrandizes the resulting dangers to global constitutionalization. Postnational executives typically depend on nation states and national executives for enforcement, which generally means that they cannot autonomously mobilize effective power or efficiently implement decisions on their own. Global executives, in short, remain clumsier and less organizationally adept than most of their national counterparts. Consequently, it seems far-fetched to view them as akin to emergency ‘dictators’, as classically conceived, since they lack some core attributes of executive power necessary for coherent, expeditious and decisive action (White 2019). At least in principle, such lacunae may help limit the prospect of harmful and legally dubious emergency action. Yet it would be a mistake to celebrate the global executive’s fragmented contours prematurely: inefficient and inept administrative organizations also contribute to legal irregularity and inconsistency. Its fragmentation can also hinder necessary and appropriate crisis action. Many forms of emergency humanitarian intervention, in particular, seem badly coordinated and embarrassingly chaotic; in such contexts, a more effective UN system for execution and implementation might be desirable. Here again we find evidence of an implicit political or social bias. UN emergency relief on behalf of refugees, for example, is notoriously inept and poorly organized (Weiss 2009, pp. 75–87). In contrast, UN post 9/11 counterterrorism meas-

Executive and exception  445 ures, aggressively backed by powerful nation states, have generated far-reaching political and institutional consequences (Scheppele 2006). More recently, the lack of such support from powerful nation states played a key role in impeding the WHO’s response to COVID-19. In part because of China’s apparent underreporting of COVID-19’s dangers, the WHO hesitated before belatedly declaring a health emergency in January 2020 (Heath 2021). With China seeking to avoid international embarrassment, and nationalists and populists elsewhere eagerly tapping xenophobia, the WHO’s response to COVID-19 was badly hobbled from the outset. Postnational emergency actors still possess one trait widely associated with classical conceptions of the executive: their deliberations often remain secret or at least opaque, in part because they may not meet the transparency tests akin to those that national executives face, in part simply because of the complex nature of global executive authority. The latter in particular makes it extraordinarily difficult to identify who in fact is responsible for specific emergency interventions. Unlike the unitary or at least hierarchical executive, the messy and institutionally diversified contours of postnational emergency power tend to render decision-making even less transparent than at the national level. Not surprisingly, their activities are arguably one source of the populist backlash against global ‘elites’. The EU’s rather disjointed – and sometimes opaque – emergency response to COVID-19 quickly ignited, for example, widespread populist ‘anti-lockdown’ protests (White 2021). In some contrast, classical theorists of executive power, such as Hamilton, favored a unitary executive because they deemed it more ‘energetic’ or efficient than a plural executive; they also preferred it because it allowed for heightened political accountability. The underlying dilemma is aggrandized by the lack of a sufficiently developed global separation of powers. Which legislative or judicial bodies are best suited to constraining postnational emergency power and hold its key players accountable? The answer, at the very least, is complicated and often unclear. Who might realistically be expected, for example, to check the SC when it engages in troublesome forms of crisis government? A related problem plaguing IO emergency action is that bodies such as the WHO primarily designed for collecting and sharing expert scientific knowledge are now being called on to play political roles for which they were poorly designed. The result appears to be a conflation of politics and science where both end up getting disfigured (Heath 2015, 2021). To the extent that IOs are increasingly taking on core tasks of emergency management, they will need to confront some difficult matters of institutional design. The globe’s existing mechanisms for postnational emergency governance demand reform. Like its territorial or nation-state cousin, any global constitutional order will likely need to allow for exceptional crisis or emergency responses to fundamental threats. Yet it will simultaneously have to make sure that emergency decision makers are subject to effective legal and constitutional checks; otherwise, global constitutionalization might tragically morph into global tyranny.

REFERENCES Boin, A., M. Ekengren and M. Rhinard (2013), The European Union as Crisis Manager: Patterns and Prospects, New York: Cambridge University Press. Calhoun, C. (2004), ‘A world of emergencies: fear, intervention, and the limits of cosmopolitan order’, Canadian Review of Sociology and Anthropology, 41 (4), 373–95.

446  Handbook on global constitutionalism Cameron, M.A. (2013), Strong Constitutions: Social-Cognitive Origins of the Separation of Powers, New York: Cambridge University Press. Cohen, J.L. (2008), ‘A global state of emergency or the further constitutionalization of international law: a pluralist approach’, Constellations, 15 (4), 456–84. Curtin, D. (2014), ‘Challenging executive dominance in European democracy’, Modern Law Review, 77 (1), 1–32. Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community, Amsterdam: Martinus Nijhoff. Fatovic, C. (2013), ‘Blurring the lines: The continuities between executive power and the prerogative’, Maryland Law Review, 73 (1), 15–53. Gross, R. and F.N. Aolain (2006), Law in Times of Crisis: Emergency Powers in Theory and Practice, New York: Cambridge University Press. Hanrieder, T. and C. Kreuder-Sonnen (2014), ‘WHO decides on the exception? Securitization and emergency governance in global health’, Security Dialogue, 45 (3), 331–48. Heath, J.B. (2015), ‘Global emergency power in the age of Ebola’, Harvard International Law Journal, 57 (1), 1–52. Heath, J.B. (2021), ‘Pandemics and other health emergencies’, in R. Geiss and N. Melzer (eds), The Oxford Handbook of the International Law of Global Security, Oxford: Oxford University Press. Hood, A. (2015), ‘The United Nations Security Council’s legislative phase and the rise of emergency international law-making’, in H. Nasu and K. Rubenstein (eds), Legal Perspectives on Security Institutions, Cambridge: Cambridge University Press, pp. 141–66. Joyner, D.H. (2012), ‘The Security Council as a legal hegemon’, Georgetown Journal of International Law, 43 (2), 225–57. Kelsen, H. (1942), Law and Peace in International Relations, Cambridge, MA: Harvard University Press. Kelsen, H. (1945), General Theory of Law and State, reprinted 1961, New York: Russell & Russell. Kreuder-Sonnen, C. (2012), Der Globale Ausnahmezustand: Carl Schmitt und die Anti-Terror-Politik des UN Sicherheitsrates (The Global State of Emergency: Carl Schmitt and Counterterrorism Policies of the UN Security Council), Baden-Baden: Nomos. Kreuder-Sonnen, C. (2019), Emergency Powers of International Organizations: Between Normalization and Containment, Oxford: Oxford University Press. Kreuder-Sonnen, C. and B. Zangl (2015), ‘Which post-Westphalia? International organizations between constitutionalism and authoritarianism’, European Journal of International Relations, 21 (3), 568–94. Mansfield, H.C. (1993), Taming the Prince: The Ambivalence of Executive Power, New York: Free Press. Menendez, A.J. (2013), ‘The existential crisis of the European Union’, German Law Journal, 14 (5), 453–527. Möllers, C. (2013), The Three Branches: A Comparative Model of Separation of Powers, Oxford: Oxford University Press. Pauwelyn, J. and A. Berman (2009), ‘Emergency action by the WTO Director-General: Global administrative law and the WTO’s initial response to the 2008–09 financial crisis’, International Organizations Law Review, 6 (2), 499–512. Publius (Alexander Hamilton) (1788), The Federalist Papers, no. 70, C. Rossiter (ed.) (1961), New York: Mentor. Scheppele, K. (2006), ‘The international state of emergency: Challenges to constitutionalism after September 11’, paper presented at Yale Legal Theory Workshop, 21 September, Yale, Newhaven, CT. Scheuerman, W.E. (2004), Liberal Democracy and the Social Acceleration of Time, Baltimore, MD: Johns Hopkins University Press. Scheuerman, W.E. (2005), ‘American kingship? Monarchical origins of modern presidentialism’, Polity, 37 (1), 24–53. Scheuerman, W.E. (2016), ‘States of emergency’, in J. Meierhenreich and O. Simons (eds), Oxford Handbook on Carl Schmitt, Oxford: Oxford University Press, pp. 547–69. Schmitt, C. (1931), Der Hüter der Verfassung (The Guardian of the Constitution), Tübingen: Mohr. Slaughter, A.-M. (2004), A New World Order, Princeton, NJ: Princeton University Press.

Executive and exception  447 Swensson-McCarthy, A.L. (1998), The International Law of Human Rights and States of Exceptions, Amsterdam: Martinus Nijhoff. Weiss, T.G. (2009), What’s Wrong with the United Nations and How to Fix It, Cambridge: Polity Press. White, J.P. (2019), Politics of the Last Resort: Governing by Emergency in the European Union, Oxford: Oxford University Press. White, J.P. (2021), ‘Emergency Europe after Covid-19’, in G. Delanty (ed.), Pandemics, Politics and Society: Critical Perspectives on the Covid-19 Crisis, Berlin: de Gruyter Publishing. World Bank Operations Policy and Country Services (2007), Toward a New Framework for Rapid Bank Response to Crises and Emergencies, Washington, DC: World Bank.

31. Federalism: from constitutionalism to constitutionalization? Thomas O. Hueglin

Federalism conventionally denotes the idea of a composite political system in which smaller communities, provinces or states retain autonomy over their own particular affairs in a larger union or federation with general powers over matters considered common to all. Federalism therefore is conventionally described as a combination of self-rule and shared rule (Elazar 1987, p. 5). In practice, federal systems rely on a division of powers between different orders of government embedded in constitutional guarantees preventing unilateral power shifts from one level to another. Constraints upon majority rule form the core of these guarantees. As pre-formulated by the early seventeenth-century political theorist Johannes Althusius, decisions may be made ‘according to the judgments of the more numerous or larger part in the things that concerns all orders together, but not in those that concern them separately’ (Althusius 1613[1995], ch. VIII, para. 70). It would seem, then, that federalism should be of considerable interest to those in search of a global constitutional order that is peaceful, stable and just. However, this has not been the case. In this chapter, I argue that this neglect stems mainly from an overly narrow conceptualization of federalism in the form of a centralized federal state. Derived from the rich reservoir of federal ideas and practices past and present, however, an extended understanding of federalism as a procedural form of treaty federalism can be extracted that has a lot to offer to the idea of global constitutionalization as a process.

FEDERALISM: CONCEPTUAL CRITIQUE Federalism largely has been neglected as a reservoir of ideas and practices for a global order on account of several reasons, none of which hold up to closer scrutiny. One of these reasons is a commonly held view according to which federalism is synonymous with conservatism, allowing it to sustain local tradition and privilege against forces of economic modernization and social progress. Thus William Riker famously remarked that ‘if in the United States one disapproves of racism, one should disapprove of federalism’ (Riker 1964, p. 155). This view overlooks the fact that the key question in federal systems is, in Althusian terms, what exactly does or should ‘concern all orders together’ (Althusius 1614[1995], ch. VIII, para. 70). This is a question that transcends the constitutional fixity of formal power divisions and points to a federal dynamic of negotiated agreement on adjustment and change (see Benz and Broschek 2013). That is, federalism is neither conservative nor progressive. Instead, its structured approach to mutually constrained forms of plural governance can provide ‘necessary institutional preconditions’ for an ongoing conversation about ‘shared normative concerns’ (Neyer 2003, pp. 688, 692). 448

Federalism: from constitutionalism to constitutionalization?  449 A second reason has to do with the traditional distinction of national politics and international relations. Federalism almost exclusively has been associated with the modern federal state. In such a state, as Alexander Hamilton argued in The Federalist Papers, a ‘federal government capable of regulating the common concerns, and preserving the general tranquility ... must carry its agency to the persons of the citizens’ (Madison et al 1787–88[2001], no. 16). Direct agency became the hallmark of modern federal states as distinguished from the older confederations in which the execution of common laws and regulations had depended on voluntary compliance by the member states. Short of military intervention and war, voluntary compliance rather than direct agency is also what has distinguished international relations from national politics in federal states. However, the conceptual boundaries between national politics and international relations have become more fluid. Policy making in an established federal state such as Canada, for instance, has long since been described as a regime of ‘federal-provincial diplomacy’ resulting in power-sharing agreements depending on intergovernmental cooperation rather than the force of direct agency (Simeon 1973[2006]). Also, the European Union can be appreciated as a novel kind of transnational polity beyond federal state and confederation in which ‘a priority of European law over the law of the member states has become firmly established, even though the organs of the Union do not possess such an authority’ (Habermas 2012, p. 24). The third and most important reason for the neglect of federalism in the conceptual search for a global political order points to the conceptualization of federalism itself, which has been narrowly focused on the classical model of American constitutional federalism. As K.C. Wheare put it in his 1946 landmark study of federal government: ‘The modern idea of what the federal government is has been determined by the United States of America’ (1946[1964], p. 1). What emerges from that idea hardly amounts to a feasible – let alone desirable – recipe for a global constitutional order: regulatory or even coercive supremacy of the federal government over states’ rights sustained by an overarching sense of national purpose and enforced by judicial interpretation (LaCroix 2010; Kincaid 2011). Not surprisingly, then, federalism is rejected outright as a possible template for global democracy when it is American federalism that is taken as the ‘central model’, and when ‘to transform the people into a people’ is identified as the ‘fundamental idea of federalism’ (Moore 2006, pp. 26–7, original emphasis). Yet what is referred to as the central model, here, would in comparative perspective more likely appear as a case of federal exceptionalism. Next to the federal dynamic of ‘coming together’ as a people characterizing the older federations, there is a newer federal dynamic in the opposite direction, ‘holding together’ as peoples (Stepan 1999, pp. 19–34). Moreover, the ‘constitutional rigidity’ attributed to ‘real federalism’ (Levy 2007, pp. 462–5) is a defining hallmark only of American-type constitutionalism. The ‘dominant tide of modern federalism’, the Supreme Court of Canada noted in a recent decision, while respecting the ‘constitutional boundaries that underlie the division of powers’, nevertheless points ‘toward a more flexible view of federalism that accommodates overlapping jurisdiction and encourages intergovernmental cooperation’ (Supreme Court of Canada 2011). As is the case in Canada, such cooperation can overcome constitutional rigidity by means of power-sharing agreements leading to ‘de facto constitutional changes’ (Simeon 1973[2006], p. 41). In the case of the European Union, because the objectives of supranational governance remain negotiable and open-ended under the treaties, and because the idea of constitutional rigidity has given way to a ‘workable’ allocation of authority through procedures of ‘enhanced

450  Handbook on global constitutionalism inter-institutional dialogue’ under the principle of subsidiarity (Horsley 2012, pp. 267–9), one may speak of an ongoing process of constitutionalization. On all three counts an extended understanding of federalism based on historical as well as contemporary precedent may provide useful conceptual guidance for the gradual constitutionalization of a global political order that is both feasible and desirable. This understanding points to principles and variations of federalism that combine constitutional guarantees of membership equality and autonomy in a system of divided and shared rule with flexible procedures of negotiating compromise and intergovernmental agreement. It is an understanding that also appears to connect well with a new dynamic perspective on global constitutionalism as ‘the emergence of constitutional qualities that coordinate law and governance in different ways’ (Tully et al 2016, p. 15).

FEDERALISM: PRINCIPLES AND VARIATIONS Federalism currently governs more than half of the world’s land space and nearly half of its population. Included in this federal world are some of the largest countries such as the United States, Canada, India and Brazil, and some of the smallest such as Switzerland and Micronesia. Some are established democratic federations, others such as Russia or Malaysia are not. The number of member units ranges from two in St Kitts and Nevis to 50 in the United States. Owing to varying degrees of political, economic and cultural diversity, the political dynamic in all federal systems is characterized by a built-in tension between centralization and decentralization. At one end of the spectrum, Austria may have become centralized to the point of ‘federation without federalism’ (Erk 2004). At the other end, Canada has been called ‘about as decentralized as it can get’ (Riker 1975, p. 133). Yet even the level of autonomy enjoyed by Canada’s provinces may not be enough for Catalonians in Spain or Flemings and Walloons in Belgium. The enormous variety of federal arrangements and practices has stood in the way of conceptualizing a definitive theory of federalism. However, it is possible to identify a number of general principles that taken together form a minimum requirement for a political system to qualify as federal (see Hueglin and Fenna 2015, pp. 25–41). First, there is a recognition of subnational spatial identity. Modern democratic states are universally constructed upon the principle of individual rights and liberties, which form the basis of popular sovereignty and collective state identity. In federal democracies, some rights and liberties are collectively extended to the constituent members of the federation as well. The main reason for this has been late state formation. The classical federations were formed at a time when their constituent members had already developed spatial identities of their own. Federation then typically occurred as a compromise between modernizers seeking to build a larger economic union and traditionalists adamant about retaining local culture and privilege. The persistence of spatial identity is therefore most obviously discernible in federations where subnational boundaries coincide with, and are reinforced by, cultural and/or socio-economic diversity (Erk 2007). However, spatial identity can also be sustained by a political culture grounded in the institutions and practices of federalism itself (Broschek 2012). Thus, relatively homogeneous societies such as in Germany or Australia appear committed to being served by different levels of government even in the absence of substantive differences in their policy expectations. For a global constitutional order among existing and long-established

Federalism: from constitutionalism to constitutionalization?  451 nation-states, the recognition of spatial identity both in terms of socio-economic diversity and political culture, is pre-determined by the right of self-determination laid down in the United Nations (UN) Charter. Second, governance in federal systems is structured by a constitutionally enshrined division of powers. Echoing the Althusian prescription of limiting majority decisions to matters common to all, the principle of how to assign powers to different orders of government was given classical expression by the nineteenth-century British doyen of constitutional law studies, A.V. Dicey: ‘Whatever concerns the nation as a whole should be placed under the control of the national government. All matters which are not primarily of common interest should remain in the hands of the several states’ (Dicey 1885[1915], p. 139). The designers of the first modern federal constitutions had not found it difficult to follow this principle, which generally coincided with the intentions of modernizers and traditionalists. The federal government would be given responsibilities for matters of economic union and foreign affairs including military security, and the states would retain all other powers including in particular social affairs and education. What may have worked reasonably well in the nineteenth century, however, became increasingly problematic and contentious with economic modernization and the rise of the welfare state in the twentieth century. The growth of modern government has blurred all original intent of dividing powers with the result that today governments at all levels are active in almost all policy fields. There are also significant variations for the assignment of powers in principle. One distinction is between American-style legislative federalism, whereby each level of government is responsible for legislation, implementation and administration within its respective sphere of authority, and German-style administrative federalism, which assigns most legislative powers to the national level of government but leaves implementation and administration to the subnational units. Another distinction pertains to the way in which issues of conflicting legislation are addressed in the case of concurrent or shared powers. In most of the conventional federal states, there is a constitutional grant of paramountcy in favour of the national government. In sharp contrast to this top-down approach, the principle of subsidiarity stipulates a bottom-up approach whereby decisions should be taken as closely to the citizen as possible. Under this principle as practised in the European Union, a formal division of powers is bypassed altogether by procedural mechanisms of negotiated agreement on task allocation within what is essentially a regime of power sharing. One would assume that the process of constitutionalization toward a global order almost inevitably will have to resort to considerations of subsidiarity rather than rely on the much blunter instrument of paramountcy. And the already existing ‘infrastructural capacity’ (Ziblatt 2008) of member states in that order obviously suggests some form of administrative federalism as there is no need for a separate global system of administration. Third, for two main reasons all federal systems depend on mechanisms and procedures of negotiating compromise. One reason is the nature of legislation at the central or federal level, which affects not only all citizens of the federation individually but also the constituent member units as carriers of their particular citizens’ collective rights. For this reason, the Americans pioneered bicameralism as the quintessential institutional hallmark of federalism. Federal legislation would depend on compromise negotiated between two legislative chambers in a system of compound majoritarianism. As James Madison explained to the readers of The Federalist Papers, while the House of Representatives would be a ‘national’ chamber deriving its powers from the American people, the Senate would be a ‘federal’ chamber

452  Handbook on global constitutionalism deriving its powers from the states (Madison et al 1787–88[2001], no. 39). American senators were originally chosen by state legislatures. The introduction of direct elections by the state populations in 1913 ‘brought an end to any sense in which senators might have been viewed as representing state interests’ (Dinan 2006, p. 321). American federalism therefore typifies a form of dual federalism: both levels of government operate separately and without legislative cooperation. Despite original intent, there are no formal channels for negotiating compromise. A much more ‘federal’ type of second chamber is the German Federal Council (Bundesrat). Its members are delegates of the subnational Länder governments who have to vote as instructed by these governments. Compromises between federal and subnational government interests can be worked out in a mediation committee (Vermittlungsausschuss) composed of an equal number of members from each legislative chamber. The members of the Bundesrat in this committee are not bound to vote as instructed by their governments. German federalism then typifies a form of integrated federalism: both levels of government cooperate in national legislation. The other reason for the need of negotiating compromise in federal systems has to do with conflict arising from the concurrent, overlapping, or complementary nature of separate legislation at different levels of government, which the designers of federal constitutions entirely overlooked. As Canada’s first Prime Minister, John A. Macdonald, confidently remarked on the constitution he and his colleagues had drafted: ‘We have avoided all conflict of jurisdiction and authority’ (Ajzenstat et al 1999, p. 283). Yet in Canada as elsewhere, constitutional divisions of power were never as clear or ‘watertight’ as intended, and areas of concurrent or shared jurisdiction existing from the outset would increase in tandem with the exponential growth of modern government in the twentieth century. In order to address the need for coordination and cooperation, intergovernmental relations (IGR) developed as an ongoing, ubiquitous and mostly informal practice that eventually would define the nature and dynamic of federal systems as much or even more than the constitutional division of powers and the bicameral process of national legislation (see Poirier et al 2015). In the hands of the executive branch of government, IGR aiming at policy coordination and harmonization typically consist of hundreds if not thousands of annual meetings and contacts among policy experts in the ministerial bureaucracies at both levels of government. The mostly pragmatic and cooperative nature of IGR can quickly give way to political conflict, however, when new policy initiatives are at stake, typically those introduced by the federal government in the name of national interest, and seen by the subnational governments as trespassing jurisdictional boundaries. Departmental ministers if not the government leaders themselves will then engage in drawn-out processes of negotiating compromise with the usual result of the federal government financing or co-financing policy programmes in return for subnational government compliance with certain conditions or policy delivery standards. Parallel to this practice of vertical IGR between different orders of government, horizontal IGR developed not only for the sake of policy coordination and harmonization across subnational boundaries but also as a concerted effort of negotiating common positions against intrusive federal governments. With the exception of the United States as an ‘outlier’, a ‘trend toward more formalized IGR’ has been noted (Poirier and Saunders 2015, p. 488), leading not only to the establishment of more durable mechanisms such as permanent intergovernmental commissions or councils but also to an ongoing process of ‘intergovernmental contracting’ (Rodden 2006, p. 38). The resulting agreements, not unlike those produced by international relations, are meant to be binding without, however, being formally justiciable.

Federalism: from constitutionalism to constitutionalization?  453 It is the question of justiciability that makes American federalism the outlier. All federal systems rely on a high court as the ultimate arbiter in jurisdictional conflicts. As Alexander Hamilton predicted in The Federalist Papers: ‘Controversies between the nation and its members … can only be properly referred to the national tribunals’ (Madison et al 1787–88[2001], no. 80). Indeed, because of its retention of a legislative and dual form, which precludes interjurisdictional legislative cooperation, American federalism almost exclusively came to rely on a ‘judiciary-centred solution to the problem of authority’ (LaCroix 2010, p. 172). By comparison, Canadian federalism over time moved from its legislative and dual form towards interjurisdictional legislative cooperation. Intergovernmental agreements, which may also include internal mechanisms for dispute resolution, can be seen in this way as ‘essentially replacing the courts as the arbiter of conflict’ (Baier 2012, p. 87). It is the European Union, however, which today practises the most intense form of IGR, from executive summit meetings among political leaders all the way down to policy coordination among policy specialists. Treaty changes equivalent to constitutional amendment are negotiated in the European Council of heads of government or state and preceded by formally convened Intergovernmental Conferences (IGCs); legislative initiatives by the European Commission are accompanied and scrutinized by a dense network of intergovernmental expert committees known as ‘comitology’; legislative proposals coming before the Council of Ministers, itself a true ‘federal’ chamber next to the European Parliament in the bicameral process of European legislation, are prepared and fine-tuned by a committee of permanent member state representatives (COREPER). The entire process leading to the adoption of a European legislative act is embedded further in subsidiarity provisions requiring consultation and negotiation with all major stakeholders including the member state parliaments. In a not yet finalized European federal system, it has been noted, ‘IGR play a crucial – and evolutionary – role’ (Levrat 2015, p. 198). They do so by providing institutional and procedural mechanisms facilitating the kind of compromises necessary for agreement on the direction this evolution might take. For a global order that can at best be thought of as at the very beginning of a process of gradual constitutionalization, the European mix of consultative and decision-making IGR may provide a suitable conceptual template. Fourth, federal systems are distinguished from other forms of multilevel governance by constitutional guarantees of membership equality and autonomy. Apart from constitutional courts as guardians and neutral interpreters at least by intention, the most obvious political expression of these guarantees can be found in rules of constitutional amendment. Federal constitutions are original contracts of agreement among the constituent members of the union to be formed. Changing them should therefore in principle require the same level of agreement yet again. In sharp contrast to the older confederations as well as international agreements, federal systems generally employ amendment rules requiring special majority and ratification rules. Amending the original contract should at least be difficult. The American constitution requires two-thirds majorities in both houses of Congress as well as ratification by four-fifths of the states. The default formula in Canada since 1982 is the so-called 7/50 procedure: a resolution by Parliament plus ratification by seven out of ten provincial legislatures representing at least 50 per cent of the population. The Australian constitution requires a passage by Parliament and approval by voters in a referendum. By comparison to these two-step procedures, amendment of the German constitution only requires two-thirds majorities in both houses of the federal legislature in a single step, a simplification which is owed to the fact that it is the subnational governments themselves which are voting in the second chamber. The

454  Handbook on global constitutionalism European Union in turn has remained confederal in this respect as treaty changes have to be ratified by all member states. Considerations of membership equality and autonomy have also guided the construction of second chambers in federal legislatures. As pioneered by the Americans again, while popular representation in the House of Representatives came to be based on proportionality, the representation of the states in the Senate was to be equal: two senators per state regardless of state size or population. Imitated in other federal systems such as Switzerland, Australia and Brazil, this equality requirement obviously can entail massive over-representation of less populous member units (Stepan 2001). Many federal systems including Germany and India therefore have adopted a system of weighted representation in second chambers: smaller member units are given more seats and votes than they would command according to population size; larger units receive more seats and votes than the smaller ones but again not as many as they would according to proportionality. The formula aims at a balance that prevents marginalization of smaller units, and larger units from dominating the decision-making process. Typically, the range of seats and votes is adjusted on a narrow scale, for example from three to six according to population in the German system. Either way, equal or weighted second chamber representation, membership equality and autonomy obviously are given recognition only as a matter of principle. Contrary to consent requirements as practised in the older confederations or in international relations, individual members may still be outvoted in matters vital to them. A case in point is the double majority rule for Council of Ministers (Council of the European Union) adopted since 2017. Decisions must be carried by at least 55 per cent of Council members representing at least 65 per cent of the Union population. In particular after the exit of the United Kingdom from the Union, the fairness of this formula has been called into question (Gábor 2020). We can see in these provisions a dilemma inherent in all federal systems: how to balance membership equality and autonomy, which would ideally require unanimity, with majority decisions for the sake of governance efficiency in practice. The dilemma is compounded in federal systems characterized by high levels of diversity or outright division where unanimity may be impossible and majority decisions unacceptable. In the international arena, this is exemplified by the UN Security Council, which requires unanimity for its resolutions and therefore rarely functions effectively. For good reason, the European Union despite its formal adherence to majority rule has retained a ‘highly ingrained culture of consensus’ whereby majority decisions are avoided and negotiation in the Council continues until common agreement is reached or dissent is no longer voiced (Lewis 2013, pp. 151–2). The dynamic of decision-making, in other words, is characterized by a search for agreement ‘in the shadow of majority rule’ (Krick 2013, p. 280). Perhaps less obvious but equally if not more important for membership equality is constitutional symmetry, which simply means that all constitutional provisions apply equally to all member units. However, this is not as unproblematic as it sounds as a more qualitative consideration of membership equality would also imply that substantive differences of interest or need in one or some of the member units also ought to be treated distinctly. Canadian federalism provides two instructive examples of how to strike a balance here. One of these is an opting-out provision under the 7/50 procedure for constitutional amendment. An amendment under this procedure that affects the division of powers by either reducing provincial powers or creating new federal powers will not apply to a province the legislature of which declares its dissent. In areas of education and culture, that province will

Federalism: from constitutionalism to constitutionalization?  455 moreover receive compensation (for example, in the form of tax abatement) from the federal government for its own exercise of these powers. Given the high threshold for amendment under the 7/50 formula, this procedure has never been used since its inception in 1982, but similar provisions also have been part of intergovernmental tax- and cost-sharing agreements. Available to all provinces in principle but routinely used only by the – mostly – francophone province of Quebec, opting-out retains formal symmetry while granting a measure of de facto or at least ‘symbolic’ asymmetry (Banting 2012, pp. 145–6). The other example of balancing symmetry with flexible accommodation is the so-called notwithstanding clause in the Charter of Rights and Freedoms, a bill of rights added to the Canadian constitution alongside the new amending formula in 1982. Central portions of the Charter pertaining to fundamental, legal and equality rights can be overridden for five years by any legislature declaring that one of its acts ‘shall operate notwithstanding’. After five years, the override either expires or must be renewed. The clause has been put to significant political use only once when Quebec invoked it to uphold a French-only language law after the Supreme Court of Canada had ruled it unconstitutional as violating individual freedom of expression. The notwithstanding clause has been vilified by constitutional purists as a surrender to political decisionism. Yet the combination of charter rights and notwithstanding clause can be appreciated as giving adequate expression to Canadian federalism as a balancing act bridging the tension between individual liberty and spatial identity or community (Vipond 1991, pp. 191–3). This would also be a central tension in a global democratic order no matter which form it might take. The Canadian Charter itself begins in its opening section with the caveat that it will guarantee rights and freedoms only within ‘reasonable limits’ as ‘justified in a free and democratic society’. Quite appropriately for a federal democratic society, it thus avoids the abstract wisdom of universal declarations with a more differentiated approach that takes into account that the members of divided societies may not agree on one universal understanding of fundamental rights. In this context, then, the notwithstanding clause provides an ‘innovative constitutional device of last resort for the determination of the scope and dimension of value plurality in federal systems’ (Hueglin 2008, pp. 146–8). Fifth, the idea of federalism significantly includes a commitment to social solidarity. The constitutional agreement on a common political order among the constituent members of a federation includes a commitment to principles of mutual aid and respect. Without such a commitment, federations would not exist in the first place. It is a commitment, however, that is not usually written explicitly into constitutional documents but emerges as a constitutional convention or as ‘unwritten constitutional law’ (Wolff 2000) from a common understanding and interpretation of constitutional intent. As the German Federal Constitutional Court held in a 1992 decision, the ‘federal principle’ obliges ‘all other members of the federal community’ to extend ‘aid’ to a particular member in need (Bundesverfassungsgericht 1992). That is, the federal principle includes a commitment to federal comity, explicitly recognized only in the Belgian constitution of 1993 as an obligation to loyauté fédérale. It is, at that, a procedural obligation for all members to act in such a way as to make the maintenance of the federal order meaningful to all in an existential as well as material sense. Underlying the commitment to social solidarity is an acknowledgment that the benefits of a federal economic union will be distributed unevenly owing to a variety of factors reinforcing the spatially asymmetrical accumulation of wealth under conditions of market capitalism such as locational advantage, population density and infrastructural capacity. Social solidarity

456  Handbook on global constitutionalism therefore essentially means redistribution. With the notable exception of the United States, all federal systems have a commitment to some form of redistribution enshrined in their constitutions although not all go as far as the German constitution with its explicit obligation for the provision of ‘equitable living conditions’ for all Germans in general, and even ‘uniformity of living conditions’ with regard to the distribution of revenue across jurisdictions. The most common form of redistribution is fiscal equalization which, however, only aims at equitability in the provision of, in the exemplary formulation of the Canadian constitution, ‘reasonably comparable levels of public services at reasonable comparable levels of taxation’ across subnational boundaries. Broader policies such as the German ‘joint tasks’ or the Structural Funds in the European Union aim at regional development more generally. Overall, the question of social solidarity would appear to be the most intractable for a democratic and stable global order. Thus it has been shown quite convincingly not only that the European financial and debt crisis has its root cause in the desolidarized market relationship between the rich member states in the north and the poorer Mediterranean member states in the south, but moreover that the amount of redistribution needed to establish anything approaching equitability would have to go far beyond existing fiscal capacities (Streeck 2014, esp. pp. 134–46). Without a significant measure of redistributive solidarity in a world much more starkly divided between rich and poor, however, even the most ingenious institutions and procedural mechanisms for a constitutionalizing global order would likely remain an empty shell. ‘Market-preserving federalism’ in this sense is a contradiction in terms (see Rodden and Rose-Ackerman 1997), and what has been pinpointed critically as the ‘new constitutionalism’ for a neoliberal world order (see Gill and Cutler 2014) amounts to the very antithesis of a federal order grounded in normative principles of equitability and solidarity. Sixth, all federal systems finally are characterized by a dynamic tension between autonomy and interdependence (Benz 2021; Hueglin 2021). The dynamic is animated by two different concepts of federalism. One is the classical concept as pioneered by the Americans according to which each order of government should exercise its powers without interference from the other order. Cooperative federalism is the other and more recent concept according to which the complexities of modern governance create interdependencies no longer allowing for watertight separations of power. The key question of federalism then no longer is ‘who should do what’ but instead ‘who should do how much of what’, one policy issue at a time. Federalism therefore denotes an open-ended process for which there is no final constitutional fixity. In the same vein and for the same reasons, it would appear that global constitutionalization likewise can only be perceived as such an open-ended process.

TREATY FEDERALISM AS A ROADMAP FOR GLOBAL CONSTITUTIONALIZATION? The principles are always the same. Federal systems are distinct from unitary states by their recognition of distinct spatial identity and a plural allocation of powers safeguarding these identities. Federalism is also distinct from mere decentralization by constitutional guarantees and rules preventing involuntary power transfers from one order of government to another. Also, federal systems are finally distinct from other regimes of multilevel governance in their recognition of membership equality as the foundation for cooperation and negotiated compromise. These principles allow for an almost infinite variety in the way federal systems

Federalism: from constitutionalism to constitutionalization?  457 are constituted and operate in practice. It is possible, however, to sort these variations into two ideal-typical models of federalism (Hueglin 2013): a model of constitutional federalism characterized by a rights-based and rigid allocation of powers with weak mechanisms of intergovernmental cooperation in policy making; and a model of what might be called treaty federalism characterized by a more flexible allocation of powers based on procedural mechanisms of negotiation embedded in strong mechanisms of intergovernmental policy making. The reality of federalism will always be a combination of both ideal-type models on a continuum with American federalism at one end and European Union federalism at the other. If the trend towards cooperation and intergovernmental contracting in diverse and divided federal systems such as Canada is an indication, the path ahead for a constitutionalizing global order of a federal kind will most likely end up as an open-ended process on the treaty federalism side of the continuum as well. As outlined in the introduction to this Handbook (Lang and Wiener, Chapter 1), constitutionalism is typically conceptualized as a commitment to the rule of law, constraints upon political decision-making by means of a horizontal separation of powers, and the mandated character of all power by the attribution of sovereignty to the people as pouvoir constituant. Constitutional federalism following the American model adds to this conceptualization the idea and practice of a vertical separation of powers between different orders of government. The problem of applying this model to deeply divided societies or even an emerging global political order is the fictitious assumption of a people as pouvoir constituant. As Lang and Wiener put it, there is no global people, only ‘various groups, agencies and modes of activism together’ that ‘can be understood as providing a kind of representative community for the international community as a whole’ (Lang and Wiener, Chapter 1 in this Handbook). This state of global affairs is precisely where existing practices of treaty federalism can at least provide some heuristic guidance in search of a gradually constitutionalizing global order: treaty agreements putting that order under common rules of law on the basis of membership equality; subsidiarity considerations taking the place of a rigid separation of powers; and, as pre-formulated by Althusius again, ‘the right of sovereignty’ belonging to a pouvoir constituant consisting of ‘the entire associated body of the realm’ (1614[1995], ch. IX, para. 18). The latter amounts to a procedural form of sovereignty or co-sovereignty. It can only manifest itself as the will of the composite pouvoir constituant if and when the process works, and the organized body of the people finds agreement. As the European Union demonstrates in particular, there is no guarantee that the process always will work. I would submit, however, that a procedural form of treaty federalism is the only realistic option for gradual constitutionalization in a deeply divided world.

REFERENCES Ajzenstat, J., P. Romney, I. Gentles and W.D. Gairdner (eds) (1999), Canada’s Founding Debates, Toronto: Stoddart. Althusius, J. (1613[1995]), Politica, abridged English translation, Indianapolis, IN: Liberty Fund. Baier, G. (2012), ‘The Courts, the Constitution, and dispute resolution’, in H. Bakvis and G. Skogstad (eds), Canadian Federalism, Don Mills, ON: Oxford University Press, pp. 79–95. Banting, K.G. (2012), ‘The three federalisms revisited: Social policy and intergovernmental decision-making’, in H. Bakvis and G. Skogstad (eds), Canadian Federalism, Don Mills, ON: Oxford University Press, pp. 141–64.

458  Handbook on global constitutionalism Benz, A. (2021), Föderale Demokratie: Regieren im Spannungsfeld von Interdependenz und Autonomie, Baden-Baden: Nomos. Benz, A. and J. Broschek (eds) (2013), Federal Dynamics: Continuity, Change, and the Varieties of Federalism, Oxford: Oxford University Press. Broschek, J. (2012), ‘Historical institutionalism and the varieties of federalism in Germany and Canada’, Publius: The Journal of Federalism, 42 (4), 662–87. Bundesverfassungsgericht (1992), BVerfG 86, 148 UPR (German Federal Constitutional Court decision). Dicey, A.V. (1885), Introduction to the Study of the Law of the Constitution, reprinted 1915, London: Macmillan. Dinan, J. (2006), ‘United States of America’, in K. Le Roy and C. Saunders (eds), Legislative, Executive, and Judicial Governance in Federal Countries, Montreal and Kingston: McGill-Queen’s University Press, pp. 316–43. Elazar, D.J. (1987), Exploring Federalism, Tuscaloosa, AL: University of Alabama Press. Erk, J. (2004), ‘Austria: A federation without federalism’, Publius: The Journal of Federalism, 34 (1), 1–20. Erk, J. (2007), Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada, Germany, and Switzerland, London: Routledge. Gábor, J. (2020), ‘Impact of Brexit on voting power in the Council of the European Union’, Open Political Science, 3, 192–7. Gill, S. and A.C. Cutler (eds) (2014), New Constitutionalism and World Order, Cambridge: Cambridge University Press. Habermas, J. (2012), The Crisis of the European Union: A Response, Cambridge: Polity Press. Horsley, T. (2012), ‘Subsidiarity and the European Court of Justice: Missing pieces in the subsidiarity jigsaw?’, Journal of Common Market Studies, 50 (2), 267–82. Hueglin, T.O. (2008), ‘Working around the American model: Canadian federalism and the European Union’, in L.A. White, R. Simeon, R. Vipond and J. Wallner (eds), The Comparative Turn in Canadian Political Science, Vancouver: University of British Columbia Press, pp. 140–57. Hueglin, T.O. (2013), ‘Comparing federalisms: variations or distinct models?’, in A. Benz and J. Broschek (eds), Federal Dynamics: Continuity, Change, and the Varieties of Federalism, Oxford: Oxford University Press, pp. 27–47. Hueglin, T. O. (2021), Federalism in Canada: Contested Concepts and Uneasy Balances, Toronto: University of Toronto Press. Hueglin, T.O. and A. Fenna (2015), Comparative Federalism: A Systematic Inquiry, Toronto: University of Toronto Press. Kincaid, J. (2011), ‘Political coercion and administrative cooperation in U.S. intergovernmental relations’, in R. Saxena (ed.), Varieties of Federal Governance: Major Contemporary Models, New Delhi: Cambridge University Press, pp. 37–53. Krick, E. (2013), Verhandlungen im Konsensverfahren: Varianten Kollektiver Entscheidung in Expertengremien (Negotiations by Consensus: Variations of Collective Decision Making in Expert Committees), Wiesbaden: Springer. LaCroix, A.L (2010), The Ideological Origins of American Federalism, Cambridge, MA: Harvard University Press. Levrat, N. (2015), ‘The European Union: from international relations to intergovernmental relations’, in J. Poirier, C. Saunders and J. Kincaid (eds), Intergovernmental Relations in Federal Systems, Don Mills, ON: Oxford University Press, pp. 174–205. Levy, J.T. (2007), ‘Federalism, liberalism, and the separation of loyalties’, American Political Science Review, 101 (3), 459–77. Lewis, J. (2013), ‘The Council of the European Union and the European Council’, in M. Cini and N. Pérez-Solórzano Borragán (eds), European Union Politics, Oxford: Oxford University Press, pp. 142–58. Madison, J., A. Hamilton and J. Jay (1787–88), The Federalist Papers, reprinted 2001, Indianapolis, IN: Liberty Fund. Moore, M. (2006), ‘Globalization and democratization: Institutional design for global institutions’, Journal of Social Philosophy, 37 (1), 21–43.

Federalism: from constitutionalism to constitutionalization?  459 Neyer, J. (2003), ‘Discourse and order in the EU: A deliberative approach to multi-level governance’, Journal of Common Market Studies, 41 (4), 687–706. Poirier J. and C. Saunders (2015), ‘Conclusion: Comparative experiences of intergovernmental relations in federal systems’, in J. Poirier, C. Saunders and J. Kincaid (eds), Intergovernmental Relations in Federal Systems, Don Mills, ON: Oxford University Press, pp. 440–98. Poirier J., C. Saunders and J. Kincaid (eds) (2015), Intergovernmental Relations in Federal Systems, Don Mills, ON: Oxford University Press. Riker, W.H. (1964), Federalism: Origin, Operation, Significance, Boston, MA: Little, Brown. Riker, W.H. (1975), ‘Federalism’, in F.I. Greenstein and N.W. Polsby (eds), Handbook of Political Science, vol. 5: Governmental Institutions and Processes, Reading, MA: Addison-Wesley. Rodden, J. (2006), Hamilton’s Paradox, Cambridge: Cambridge University Press. Rodden, J. and S. Rose-Ackerman (1997), ‘Does federalism preserve markets?’, Virginia Law Review, 83 (7), 1521–72. Simeon, R. (1973), Federal-Provincial Diplomacy, reprinted 2006, Toronto: University of Toronto Press. Stepan, A. (1999), ‘Federalism and democracy: Beyond the U.S. model’, Journal of Democracy, 10 (4), 19–34. Stepan, A. (2001), ‘Toward a new comparative politics of federalism, (multi)nationalism, and democracy: Beyond Rikerian federalism’, in A. Stepan (ed.), Arguing Comparative Politics, New York: Oxford University Press, pp. 315–62. Streeck, W. (2014), Buying Time: The Delayed Crisis of Democratic Capitalism, London: Verso. Supreme Court of Canada (2011), Reference re Securities Act. SCC 66, Ottawa: Supreme Court of Canada. Tully, J., J.L. Dunoff, A.F.D. Lang, Jr., M. Kumm and A. Wiener (2016), ‘Editorial: introducing global integral constitutionalism’, Global Constitutionalism, 5 (1), 1–15. Vipond, R.C. (1991), Liberty and Community: Canadian Federalism and the Failure of the Constitution, Albany, NY: State University of New York Press. Wheare, K.C. (1946), Federal Government, reprinted 1964, Oxford: Oxford University Press. Wolff, H.A. (2000), Ungeschriebenes Verfassungsrecht unter dem Grundgesetz (Unwritten Constitutional Law under the German Constitution), Tübingen: Mohr Siebeck. Ziblatt, D. (2008), Structuring the State: The Formation of Italy and Germany and the Puzzle of Federalism, Princeton, NJ: Princeton University Press.

32. The UN Charter and global constitutionalism? Michael W. Doyle1

How constitutional is the international order? The globe is increasingly interdependent but does it have a coherent legal order, assigning authority to decide on questions of rights and responsibilities? Few would choose the description ‘coherent’ if that connotes centralized. Yet, even as a decentralized legal order, the international system arguably has no single constitution, but the closest candidate to a constitution it does have is the United Nations (UN) Charter (hereafter, the Charter). Just how constitutional is the Charter in theory and practice? Over 60 years into its evolution we can see two dominant features. First, the Charter is not like a national federal constitution (for example, the US Constitution) but neither is it an ordinary contract-like treaty. Its key constitutional features are three: first, supranationality; second, inequality; and, third, like all constitutions, an ‘invitation to struggle’ that leads to inevitable pushback from states when UN authority expands. Second, unlike many domestic constitutions the pushback more than holds its own. The UN, unlike either the European Union (EU) or the United States of America (US) in their various ways, has neither integrated its parts nor centralized authority. Instead, to borrow the language of 1970s international integration, UN integration has ‘spilled around’ more than ‘spilled over’ into deeper cooperation. To illustrate those points, I start with a comparison of the UN Charter to both capital ‘C’ domestic constitutions and to ordinary treaties. I address with a broad brush the main features of the UN’s supranationality and inequality. I then consider two examples of tension between UN supranationality and sovereignty. I explore the planned and inadvertent transfers of authority embodied in modern peacekeeping mandates. I then focus on the example of the Millennium Development Goals (MDGs), the UN’s recent attempt to remake itself as a development body. (Here I offer an insider’s reflections, drawing on my experience as Kofi Annan’s special adviser from 2001 to 2003.) I conclude with a discussion of the wider constitutional significance and prospects of the UN in the light of the contrasting success of the history of US federalism and European integration.

GLOBAL CONSTITUTIONALISM Answering whether the UN Charter is a constitution depends on what we mean by a constitution and to what alternative we are contrasting a constitution. As Anthony Lang and Antje Wiener note in the fifth paragraph of their introduction to this Handbook (Chapter 1), ‘a constitutional political and legal order enables and constrains political decision-making’ through the operation of ‘the rule of law, a balance or separation of This chapter draws on parts of a chapter, ‘The UN Charter – a global constitution?’, in Dunoff and Trachtman (2009) and also draws on parts of ‘Dialectics of a global constitution: the struggle over the UN Charter’ (Doyle 2012). 1

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The UN Charter and global constitutionalism?  461 powers, and constituent power’. This is similar to the key insight advanced by Jeffrey Dunoff and Joel Trachtman (2009, p. 15) when they highlight in their functional theory of constitutionalism the enabling and constraining functions of constitutions. Both these conceptions usefully distinguish a constitution from either any set of rules (the rules of a school chess club, for example) and from a specific political content, such as those that require specific rights or forms of government, such as democracy. As an example of the former, the ‘balance of power’ was deemed to seventeenth-century commentators to be the ‘constitution of Europe’ (Gross 1948). As examples of the latter specific content, the American founder James Madison declared that the people had to have a direct role in electing the legislature for there to be a genuine constitution at the federal level, but this was advocacy for what he saw as an effective constitution. The French revolutionaries in the ‘Declaration of the Rights of Man and of the Citizen’ (1789) Article 16, declared: ‘Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution.’ It is thus useful to distinguish the UN Charter from other constitutions, and from ordinary treaties. If the relevant contrast is to the US Constitution – the constitution of a sovereign state – the answer is clearly, ‘no’. The UN was not intended to create a world state. As the Charter’s preamble announces, it was created for ambitious but specific purposes: ‘[T]o save succeeding generations from the scourge of war’, ‘reaffirm faith in fundamental human rights’, ‘establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’ and to ‘promote social progress and better standards of life in larger freedom.’ The UN, moreover, is an organization based on (Charter, Art. 2.1) the ‘sovereign equality of all its members’, its membership being open to all ‘peace-loving states’ (Charter, Art. 4.1). This contrasts strikingly with the US Constitution’s much more general, sovereign-creating purposes: ‘[T]o form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity’ (US Constitution, Preamble) (Alvarez 2006, pp. 67–8). The UN Charter lacks at least two of the three key attributes that the Constitutional Court of South Africa identified as essential to a constitution. In Pharmaceutical, the court averred that a constitution is a unified system of law: ‘There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.’2 The Charter lacks what Frank Michelman, in commenting on the case, has called the attributes of, first, ‘pervasive law’ (that is, ‘all law is subject’) and, second, ‘basic law’ (that is, ‘derives its force’) (Michelman 2006). The UN Charter, instead, reflects what Laurence Helfer calls the ‘disaggregated and decentralized’ character of the international order (Helfer 2003). Neither is all international law subject to the UN nor is the Charter the legal source of all international law. Much international law precedes the Charter and has been developed parallel to it, including fundamental elements of international law such as the Genocide Convention which requires its signatories (and as jus cogens, all states) to prevent, stop and punish genocide seemingly irrespective of whether genocide is an ‘essentially’ domestic matter under Article 2(7) and whether the Security Council (hereafter Council) has authority to act in matters beyond ‘international peace and security’. The Charter does, however, have a degree of the third attribute of a constitution: supremacy.

In re Pharmaceutical Mfrs. Ass’n of S.A. 2000 (3) BCLR 241 (CC) para. 44 (S. Afr.).

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462  Handbook on global constitutionalism If, on the other hand, we contrast the Charter to a standard contract-like treaty, the differences are also clear.3 The UN Charter is a treaty, but a special treaty. Like a constitution it has supremacy (Art. 103) even over treaties that would normally supersede it by ‘the last in time’ rule (Vienna Convention, art. 30). This supremacy covers not all international law (it is not pervasive or basic) but only the aspects of the Charter in which it imposes ‘obligations,’ most particularly, peace and security. As with the US Constitution (US v. White), the Charter is perpetual; it cannot be revoked by its constituents. Indeed, while states can be expelled there is no provision for resignation. Moreover, the Charter binds all states, whether members or not, in matters of peace and security (Art. 39). As with a constitution, it is ‘indelible’, in Thomas Franck’s terminology (2003). Unlike most treaties, no reservations can limit its effects on states that ratify it. Also, it is very hard to amend. Amendments require an international conference and a two-thirds affirmative vote of the entire membership, including all five permanent members of the UN Council (the ‘Permanent Five’) (Art. 109). Finally and most importantly, it has institutional, for lack of a better word, ‘supranationality’4 in the sense that it permits authoritative decisions without continuous consent. Like many constitutions, it does so by dividing powers between constituents and the constituted institution.5 The Charter establishes a division of powers among the functional components of governance – the Council, General Assembly (hereafter, Assembly), Secretariat, International Court of Justice (ICJ), and so on – which have quasi-executive, legislative, administrative and judicial functions. The UN Secretariat is pledged to international independence in the performance of its duties (Art. 100). Crucially, the UN makes or is authorized to make decisions without the continuous consent of its member states. Budgets can be adopted by a two-thirds vote and the ICJ has held them as binding on all the members, including those who voted against the substantive measures that the budget funds (ICJ Expenses Case). Security Council decisions taken under chapter VII in matters of international peace and security – those with at least nine out of 15 votes, including no vetoes by the Permanent Five – are binding on all states (Arts 25 and 48). The Charter has also been interpreted flexibly to make ‘necessary and proper’ functions viable. The requirement that Security Council votes on substantive matters pass with affirmative votes of the Permanent Five, for example, has been flexibly interpreted to mean no negative votes (vetoes), allowing permanent members to abstain without vetoing.6

For a discussion of these differences, see Franck (2003), and for an analysis of the various contract like features of international law, see Scott and Stephan (2006). For a wide-ranging survey of the debate on Charter constitutionalism, see Fassbender (1998). In response to Fassbender and highlighting, as I do, some of the differences between the UN Charter and conventional constitutions, see Jan Klabbers Chapter 33 in this Handbook. 4 I do not mean that the ‘UN’ is sovereign over the member states; the UN is an organization of the member states. Thomas Franck (2003) calls this ‘institutional autochthony’, stressing the independence (kompetenz) of the institution. That is part of what I want to convey, but even more I want to highlight the ability of some members to bind all without explicit, case-by-case consent, from each member. 5 States have reserved ‘essential’ domestic jurisdiction to themselves, and granted the UN international jurisdiction, in Article 2.6. 6 United Nations legal order (Schachter and Joyner 1995) (‘[S]ometimes some Member States may start interpreting a particular provision in a certain way and after a while that interpretation becomes accepted by other Member States and by the organization itself. For instance, in connection with a resolution in the Spanish case, the Soviet Union’s representative announced that in order not to veto an Australian resolution, he would abstain from voting 1946 Security Council Official Records . . . 243 (39th mtg). Since then, despite occasional objections, it has been recognized in more than 100 cases 3

The UN Charter and global constitutionalism?  463 This ‘supranationality’ might be seen as, first, simple agency on behalf of the member states, second, a delegation of specific functions to be administered independently, or third, a transfer of sovereign powers to a central and independent institution.7 In UN practice all three can be found and they mix together. I now turn to how this operates in the UN system. In each case I will be looking at the rationale for the supranationality and the struggle that ensues between those authorized to act multilaterally and the efforts of states to restrict the authority granted. The UN Charter, like so many constitutions before it, is an invitation to struggle.8

THE UN CHARTER: SUPRA OVER SOME AND LESS SO FOR OTHERS Supranationality in the Charter affects the responsibilities of all member states, but some much more so than others and in all cases states pushback against attempts to assert international authority. All states are affected by the UN possession of a legal ‘personality’ that permits it to undertake responsibilities and act on behalf of the membership. It can sue a member without the consent of the member and be sued by members without the consent of other members. In the Reparations Case involving reparations for the assassination of a UN official, Count Bernadotte, the ICJ declared that the UN: is at present the supreme type of international organization and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence to enable those functions to be effectively discharged.9

that, despite the requirement in Article 27(3) that decisions of the Security Council on non-procedural matters be made ‘by an affirmative vote of seven members including the concurring votes of the permanent members’ (emphasis added), a voluntary abstention of permanent members is not considered to be a veto. For a summary of the practice of the Security Council confirming this rule, see the Written Statement by the Secretary-General of the United Nations, Dec. 4, 1970, ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia, Pleadings, Vol. I, at 203–6. For a statement that this practice constituted a violation of the Charter, see the Written Statement of the Government of the Republic of South Africa in the same case, at 377, 403–17. In its advisory opinion in that case, the ICJ stated that ‘the proceedings of the Security Council extending over a long period supply abundant evidence that presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions. By abstaining, a member does not signify its objection to the approval of what is being proposed: in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has only to cast a negative vote. This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the United Nations and evidences a general practice of that Organization’ (1971 I.C.J. Rep. 16, 22). 7 For a recent treatment of these issues see Sarooshi (2005) and Alvarez (2006). 8 There are a number of other ways to explore the constitutionality of the UN system, including, for example, comparing the UN with other regional and international organizations, analyzing the separation of powers among its principal organs or exploring the role played by the ICJ as a constitutional interpreter. Some of these examples are taken up by other authors in this volume (such as, for example Chapter 18 by Jeff Dunoff and for contested norms, see Chapter 9 by Jan Wilkens). 9 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, Summary (Apr. 11).

464  Handbook on global constitutionalism The management of UN finances illustrates a more substantial facet of supranationality, and again one that bears on all members, albeit differently. In Articles 17 and 18 the Assembly is given the authority to ‘consider and approve’ the budget and the members undertake to bear those expenses ‘as apportioned by the General Assembly’. The budget being an important matter, a two-thirds vote thus binds – in effect, taxes – the members to support the expenses of the organization. This differs notably from the League of Nations where unanimity ruled (Goodrich and Hambro 1949). United Nations budget assessments, moreover, are enforced by the provision in Article 19 whereby any member will lose its vote in the Assembly if it is two years or more in arrears. In December 1961, following the controversy over payment for the UN Expeditionary Force in the Sinai and the UN Operation in the Congo, and in particular the vehement rejections of financial responsibility by France and the USSR, the Assembly requested an advisory opinion from the ICJ on whether the expenses the organization had ‘incurred’ were obligatory under Article 17. In its Expenses Case opinion of July 1962, the Court’s majority ruled expansively. Noting that even though some of the policy authorizations were made by the Assembly and not by the Council (which had ‘primary’ responsibility for peace and security) the Court found that the Council did not have exclusive responsibility for peace and security. Furthermore, the obligatory character of the expenses, if properly approved by the Assembly, did not rest on the legitimacy of the underlying substantive purpose of the resolution.10 This seemed to imply that the Assembly could legally tax where the UN could not otherwise legally oblige (Hoffmann 1968). However, as interesting as the legal judgments were, political forces determined the outcome of the financing controversies. As early as 1946, money talked as the US set limits on what it was prepared to pay (at 40 percent), whatever a pro rata estimate would indicate. When the USSR fell two years in arrears in 1964–65, the US led a campaign to deprive the USSR of its Assembly vote (Russell 1966). When this failed, the US announced (the ‘Goldberg Reservation’) that it would also assume a right to regard the budget as nonbinding. The Assembly then moved to a procedure that recognized functional consensus (will the taxpayers pay?) as the basis for budgeting. In practice, this allowed the eight countries that on average paid 75 percent of the budget to have a veto equivalent to the other 180-plus members. The US, regarding the budget as advisory, then regularly withheld assessments as leverage to promote institutional and other changes it sought to impose on the organization. Political pushback thus effectively amended the Charter in a pragmatic – but far from organizationally effective – direction as a wide range of states each adopted a bargaining veto vis-à-vis the biennial budget negotiations. The most striking supranational features of the Charter system are the provisions of chapter VII with regard to international peace and security. Here the UN is both supranational and discriminatory. In matters of international peace and security (Art. 39) Council decisions bind all UN members (Arts 25 and 48) when they garner the requisite nine votes, including no vetoes by the Permanent Five. Nine members can govern the whole. However, the Permanent Five – the US, the UK, France, Russia and China – have the unequal right to remain unbound unless they concur or abstain. The working interpretation that abstentions by the Permanent Five do not count as vetoes reinforces their special status, allowing them the unique discretion 10 See Certain Expenses of the United Nations (Art. 17, para. 2 of the Charter), Advisory Opinion, 1962 ICJ 151 (July 20).

The UN Charter and global constitutionalism?  465 not to veto without necessarily affirming and establishing informal precedents they might not want to recognize.11 In the Lockerbie Case, the ICJ majority held that Security Council Resolution 748 trumped the provisions of the Montreal Convention that allowed Libya at its discretion to either extradite or try suspected criminals (aut dedere aut judicare). In doing so it affirmed the supremacy of Council resolutions over conflicting international law.12 Statements by the ICJ judges left open the possibility that Council resolutions might be held ultra vires by the ICJ if a relevant case were put before the court, but the overall weight of the opinion strongly reinforced the supranationality of the UN in peace and security vis-à-vis all member states, whether or not they had approved the particular Council decision. This led some to question just how legitimate and representative the Council was when considered as a world governmental body (Reisman 1993; Bowett 1994). However, the more usual sovereign pushback was the refusal to negotiate agreements under Articles 43–47 to allocate forces under the direct command of the Council. The original Charter conception involved division-sized forces of aircraft, naval and ground forces, all subject to the Council and commanded by the postwar equivalent of the Second World War’s allied joint command, a Military Staff Committee appointed by the Council. Absent such ‘special agreements’, states retained the right to refuse to deploy forces at the call of the Council, which was reduced to negotiating with potential troop contributors to form in Brian Urquhart’s phrase, the UN equivalent of a ‘sheriff’s posse’. In this way discretionary sovereignty was reaffirmed in practice. Transitional Peace Operations Authority Supranationality to one degree or another is nearly inevitable in the complicated UN-managed transitions from war to peace and often, simultaneously, from autocracy to democracy and state to market. A transitional peace operation usually needs two authorizations; one is international, the other domestic. The two need not be always connected. An internationally authorized humanitarian intervention could proceed without host state authorization (but it will not succeed unless it wins the support of a significant majority of the local population). Also, a sovereign government can invite foreign forces to assist it without recourse to the UN or a regional organization for authorization. However, the two usually are connected. (It is worth noting that even the forcible interventions in Somalia, Haiti and Kosovo each had prior domestic authorizations, albeit each under duress and in the Somali case from factions rather than from a functioning national government.) From the international point of view, peace operations – which intrude upon the domestic sovereignty of states – come to be established in two ways. First, under chapter VI of the UN Charter, they are the negotiated consent of the parties and then through a series of Status of Forces agreements that specify the legal terms for the presence of foreign forces. Or, second,

11 The late Oscar Schachter of Columbia Law School is widely credited for this creative, ‘constitutional’ interpretation made when he was UN Deputy Legal Adviser. For discussion see Gross (1951) and McDougal and Gardner (1951). 12 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. US), Provisional Measures, 1992 I.C.J. 114 (Apr. 14). See also Plachta (2001).

466  Handbook on global constitutionalism they are established under chapter VII, which permits the overriding of domestic jurisdiction (Article 2–7) without consent of the local parties. These enforcement operations draw upon the authority of Article 42, which permits the Security Council to ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’; Article 25 under which member states ‘agree to accept and carry out the decisions of the Security Council’; and Article 43 in which they agree to ‘make available to the Security Council, on its call, ... armed forces, assistance and facilities’. Troop contributing countries in these cases negotiate in detail the terms of the participation of their forces either under UN command and thus with the Secretary-General (as in El Salvador or Cambodia) with a regional organization authorized as delegated in chapter VIII or with the leader of a multinational ‘coalition of the willing’ authorized under chapter VII (as was the case of US leadership of the Unified Task Force, UNITAF, in Somalia). Many operations draw on combinations of authorizations: peace treaties among factions, backed up or supplemented by other measures authorized (such as arms embargoes or no-fly zones) under chapter VII, as did the various United Nations Protection Force, UNPROFOR, and Implementation Force, IFOR, operations.13 ‘Chinese chapter VII’ – as employed to authorize the use of force for the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UNTAES – has emerged a new signal of firm intent to enforce a chapter VI operation, though in essence it reaffirms the ‘Katanga Rule’ of the United Nations Operation in the Congo (ONUC) operation: the traditional principle that force can be used both in self-defense of peacekeeping troops and of the mission (mobility of the force) (Liu 1992). From the domestic point of view, a local authority (or authorities) shares temporarily and, usually, conditionally some of its (or their) own legitimacy with the international peace operation. Domestic authority can be examined in the light of the classic types of authorization and ‘imperative coordination’. Max Weber outlined three ideal types of imperative coordination: traditional, charismatic and rational (Weber 1947). The first two types of authority may be rare in civil war transitions. Traditional authority – an established belief in the sanctity of immemorial traditions and of the status of those exercising authority under them – has often broken down. Under the pressures of economic growth and social mobilization, tradition tends to erode and traditional states collapse. Charismatic authority – resting on devotion to the sanctity, heroism or exemplary character of the individual leader and the order ordained by him or her – is often in excess supply, claimed by each of the faction leaders. Usually, therefore, rational authority – the legality of patterns of normative rules and the right of those elevated under such rules to exercise commands – has to do the work of reconstruction, and often in competition with pre-existing, but weakened traditional and charismatic sources of authority. Transitional authority must be constructed through painstaking negotiation, taking some cognizance of widely recognized international human rights norms, and endorsed through negotiated schemes of power-sharing or popular elections. It is difficult, for example, to imagine the success, limited as it is, that Cambodia has achieved without the leadership of Prince and later King Sihanouk. He repeatedly served as a catalyst for difficult decisions and a bridge between competing factions that would only contact each other under his auspices. The charismatic authority enjoyed by Nelson Mandela was an equally vital part of the difficult transition underway in South Africa. Lacking these 13 For a valuable discussion of the international law on the use of force and its bearing on authority for peace operations, see Guttieri (1997).

The UN Charter and global constitutionalism?  467 forms of unifying authority in Somalia, El Salvador, Guatemala and Bosnia, peace operations had to rely on enforceable or continually re-negotiated agreements, which made the quality of international transitional authority a key component of success or failure. Straightforward as these authorizations are, they each leave room for unanticipated but inevitable instances where delegated authority turns into what Ian Johnstone called ‘open-ended consent’ (Johnstone 1995). In chapter VII enforcement operations authority derives from a Security Council resolution, but no committee of 15 can anticipate or manage the ensuing process of reconstructing domestic authority thousands of miles away. Even chapter VI operations that rest on a painstakingly negotiated peace treaty cannot anticipate the myriad of operational circumstances that will require decisions (Ratner 1995; Chopra 1999; Doyle 2002). Special representatives, exercising ‘command from the saddle’, then learn to treat their SC mandates as either ‘ceilings’ that cannot be breached or ‘floors’ that support extended action, depending on the local circumstances. Should, for example, the peace process continue if one or more of the parties has breached the peace agreement by not disarming, as occurred in the middle of the Cambodian peace? Special Representative Akashi with the support of the Security Council and some of, but not all, the Cambodian parties decided to continue, contained the spoilers and succeeded in organizing a (barely) free and fair election that legitimated a new sovereign government of Cambodia. Reginald Austin, head of the Cambodian peace’s electoral component, faced a similar choice and degree of discretion. He asked, what are the ‘true objectives of UNTAC (the UN Transitional Authority in Cambodia): Is it a political operation seeking the immediate solution to an armed conflict by all means possible? Or does it have a wider objective: to implant democracy, change values, and establish a new pattern of governance based on multipartism and free and fair elections?’ (Austin 1993; Doyle 1995). Extensive and open-ended as this delegated authority is, inevitably here, too, we find significant pushback. Noted above is the insistence by China on constraining the independent exercise of coercive force by peacekeeping operations (‘Chinese chapter VII’; Doyle and Sambanis 2006, p. 17)). Even more significant in shaping contemporary peacekeeping is pushback by two other key participants; the ‘peace-kept’ and the troop contributors. Peace operations are political. ‘Spoilers’ resist the terms of peace treaties and agreements tend to be fluid. In the new civil conflicts, leaders are reluctant to give up power and where they are willing to share power they find that they often lack the capacity to maintain a difficult process of reconciliation leading to a re-establishment of national sovereignty. The South West African Peoples Organization (SWAPO) in Namibia, the Farabundo Martí National Liberation Front (FMLN) in El Salvador and the Khmer Rouge in Cambodia all defected within months, and in some cases days, from (or failed to implement) crucial elements of the peace (Stedman 2003; Fortna 2004; Doyle and Sambanis 2006). Nearly equal challenges arise in managing peace operations by coordinating rivalrous international agencies or mobilizing government contingents. Each participant in the combined effort wants a lead role and few are prepared to be led or coordinated (Jones 2003; Roed-Laursen and Hooper 1999). The MDGs: Roadmap to Confrontation Supranationality also appears in ‘legislative’ delegation by the United Nations General Assembly. In the UN, as in most institutions, principals delegate to agents (for example, member states to the Secretariat) because implementation is too detailed an activity to be managed by 193 states. The agents’ job becomes problematic, controversial and governmental

468  Handbook on global constitutionalism when the program outlined by the principals is ambiguous or contested. Then the Secretariat is inherently engaged in political government. This is what happened when the ‘Road map’ to implement the Millennium Declaration was delegated to the Secretariat. At the UN Millennium Summit in September 2000, the members formally and unanimously dedicated themselves to a redefinition of goals and means. Since its inception the UN has been an organization by, for and of states – and so it remained. However, in 2000, under the leadership of Secretary-General Kofi Annan, it set out to acquire a parallel identity, a new model of itself. It was redefining the meaning of global good citizenship for our time by putting people rather than states at the center of its agenda. The Millennium Declaration set this agenda.14 At the Millennium Summit, world leaders agreed to a set of breathtakingly broad goals that are global, public commitments on behalf of ‘we the peoples’ to promote seven agendas, ranging from peace and security through development and poverty eradication, environmental protection, protection of the vulnerable, the special needs of Africa and concluding with UN institutional reform. Promising an agenda for action – the international community’s marching orders for the next 15 years – the member states blithely transferred responsibility for designing a ‘roadmap’ to implement these goals to the Secretary-General. ‘The Follow-up to the Outcome of the Millennium Summit’ General Assembly resolution requested ‘the Secretary-General urgently to prepare a long-term “road map” towards the implementation of the Millennium Declaration within the UN system and to submit it to the General Assembly at its 56th session [nine months later.]’15 This report was to incorporate annual monitoring focusing on ‘results and benchmarks achieved’, reflect the capacities of member states and the entire UN system including the World Trade Organization (WTO) and Bretton Woods institutions, and outline practical measures to meet the ambitious targets. A small coordinating team in the Executive Office of the Secretary-General, the Strategic Planning Unit under the direction of Dr Abiodun Williams, set about collecting from all the UN’s agencies and programs information on what the UN system was already doing to promote these goals and what next steps seemed practicable to advance them. Once compressed and simplified, this encyclopedic list became the Roadmap Report (A/56/326 of 6 September 2001). The striking part of the report was the treatment of the development goals, which came to be called the MDGs – the Millennium Development Goals. Drawn from the development and environment chapters of the Millennium Declaration, the MDGs defined common aspirations in the worldwide effort to alleviate poverty and promote sustainable economic and social development. They pledged to ‘spare no effort to free our fellow men, women and children from the abject and dehumanizing condition of extreme poverty’ and ‘to create an environment – at the national and global levels alike – which is con-

United Nations Millennium Declaration, G.A. Res. 55/2, U.N. Doc. A/RES/55/2 (8 Sept. 2000), accessed at http://​www​.un​.org/​millennium/​declaration/​ares552e​.pdf. 15 G.A. Res. 55/162, 18, U.N. Doc. A/RES/55/162 (18 Dec. 2000). Secretary-General Kofi Annan assigned me the task of putting together this report when I arrived at the UN as his special adviser in March 2001, three months after the General Assembly authorization. 14

The UN Charter and global constitutionalism?  469 ducive to development and the eradication of poverty.’ The eight MDGs that an interagency UN team crystallized from the two chapters of the Millennium Declaration were:16 1. Eradicate extreme poverty and hunger Target for 2015: Halve the proportion of people living on less than a dollar a day and those who suffer from hunger. 2. Achieve universal primary education Target for 2015: Ensure that all boys and girls complete primary school. 3. Promote gender equality and empower women Targets for 2005 and 2015: Eliminate gender disparities in primary and secondary education preferably by 2005, and at all levels by 2015. 4. Reduce child mortality Target for 2015: Reduce by two-thirds the mortality rate among children under five. 5. Improve maternal health Target for 2015: Reduce by three-quarters the ratio of women dying in childbirth. 6. Combat HIV/AIDS, malaria and other diseases Target for 2015: Halt and begin to reverse the spread of HIV/AIDS and the incidence of malaria and other major diseases. 7. Ensure environmental sustainability Targets: Integrate the principles of sustainable development into country policies and programs and reverse the loss of environmental resources. By 2015, reduce by half the proportion of people without access to safe drinking water. By 2020 achieve significant improvement in the lives of at least 100 million slum dwellers. 8. Develop a global partnership for development Targets: Develop further an open trading and financial system that includes a commitment to good governance, development and poverty reduction – nationally and internationally. Address the least developed countries’ special needs, and the special needs of landlocked and small island developing states. Deal comprehensively with developing countries’ debt problems. The interagency team was remarkable for the quality of the cooperation it engendered. It included representatives from the Organisation for Economic Co-operation and Development (OECD), the United Nations Department of Economic and Social Affairs’s Statistical Office (UNDESA), the World Bank, the International Monetary Fund (IMF), the United Nations Children’s Fund (UNICEF), the United Nations Fund for Population Activities (UNFPA), other agencies and the United Nations Development Programme (UNDP). Jan Vander Moortele, a development expert with UNDP, co-chaired meetings with these development and statistical experts. Much of the consensus the group achieved was the product of scientific experts, long frustrated by bureaucratic rivalry, persuading their principal agencies on the need for rational policy cooperation. 16

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Develop decent and productive work for youth. In cooperation with pharmaceutical companies, provide access to affordable essential drugs in developing countries. In cooperation with the private sector, make available the benefits of new technologies – especially information and communications technologies.

The MDGs soon became controversial and allegedly ultra vires bureaucratic impositions that went beyond what the member states had authorized as goals in the Millennium Declaration.17 The US refused to acknowledge the MDGs as such, referring to them instead as the ‘internationally recognized development goals in the Millennium Declaration’, making the UN’s effort to brand and promote the goals difficult. The crescendo of attack peaked with the rhetoric of Ambassador John Bolton who used them as a leading reason to reject the outcome consensus on UN reform in the summer of 2005. Bolton has portrayed the goals, targets and indicators as a UNDP engineered coup, beyond what was agreed at the 2000 Summit (Bolton 2007). In fact, the Secretariat as a whole had been directed by a unanimous General Assembly (GA) resolution to prepare a ‘roadmap’ on how to implement the goals. Ranging far beyond UNDP, the World Bank, the IMF and the UN system endorsed the goals, targets and indicators mandated by the GA resolution. Bolton was at last overridden by President Bush who accepted the MDGs by word and title in his September 2005 speech. The MDG goals, targets, and indicators in reality had three sources. The interagency team from the entire UN system that met over the spring and summer of 2001 drew first and most importantly on the Millennium Declaration. Contrary to the US critics, every goal had a textual source that could be located in the Declaration’s text. Every significant commitment in the Declaration’s development chapter found a place in the MDGs as goal, target or indicator. But the MDGs were not a verbatim copy of the Declaration. The development chapter of the Declaration, for example, had fourteen bulleted goals; the MDGs eight. The Declaration was not monitor-able without further specification. Some Declaration goals were specific, time-bound, and targeted; others vague and aspirational. All the MDGs were made operational by being linked to best then available measurable indicators. The second source was the pre-existing development goals of the international community, most particularly the seven International Development Goals (IDGs). First developed in 1996 by the OECD, they won the endorsement of the World Bank, OECD, IMF, and UN Secretary-General Kofi Annan in a June 2000 report, ‘Better World for All: Progress towards the International Development Goals’ (the BwfA Report). The IDGs included goals and targets to reduce extreme poverty, promote education and maternal health – all of which reappeared in the Millennium Declaration.

17 The actual source of US discontent seemed to me to be a policy disagreement. The Bush Administration was launching the Millennium Challenge Account (MCA) which made governance reform (marketization, private enterprise, fiscal balance, open current accounts for international finance and democratization) the precondition for foreign aid. Once the political appointees in the Administration had come into office in late 2001, they saw the MDGs as a reflection of the ‘old ideology’ of Northern responsibility for Southern poverty and an ideological platform to make the shortfall in foreign aid the excuse for development failures. My response was that the MDGs were a ‘thermometer’ designed to measure progress, not a strategy. There was no reason not to portray the MCA as the best (US) strategy for meeting the MDGs. This argument was welcomed in the US Treasury, but not in the State Department.

The UN Charter and global constitutionalism?  471 The BwfA Report soon became shrouded in controversy. Many developing states and many in the development nongovernmental organization (NGO) world rejected the seemingly one-sided program to monitor Third World progress without an equivalent measure of the contribution the wealthy countries were making to global progress. The developing world critics soon tagged the report with the title ‘Bretton Woods for all’. Some countries (Catholic and Muslim and, after January 2001, the Bush Administration) objected to the ‘reproductive health goal’ which seemed to endorse birth control and possibly abortion services. Nonetheless, key development actors, including the Bretton Woods institutions and the influential UK development ministry (Department for International Development, DFID, referred to in some UN circles as ‘the indispensable department’), had a stake in the viability of the IDGs and the principles of multidimensional, human-centered, output-oriented and measurable development they embodied. The UN system interagency team adopted the framework of the IDGs, replaced ‘reproductive health’ from the IDGs18 with ‘HIV/AIDS’ from the Millennium Declaration, and added an ‘eighth goal’ – a ‘global partnership for development’ that assembled a variety of commitments in trade, finance and development aid made by the wealthy countries and embodied in the Millennium Declaration. The result was the new eight which in late June 2001 they decided to call ‘The Millennium Development Goals’.19 The third source was a determination to overcome generations of dispute among the Bretton Woods institutions, the UN Development Program, the UN Conference on Trade and Development, and other UN agencies. Each had grown into the habit of criticizing the others’ reports and strategies, producing a cacophony on what development meant, how it should be measured, and whether progress was being made. The UN system interagency team assembled to roadmap the development section of the Millennium Declaration was a team of experts, particularly involving the heads of the statistical services within the respective organizations. Acutely aware that agreed indicators would shape development policy coordination and determine the high-priority statistics that national and international statistical agencies would collect, they took great care in choosing – within the usual confines of agency stakes and commitments – the best 48 indicators then available to measure 18 targets that defined the eight goals. In addition to rejecting the MDG framework in general, the Bush Administration later objected that one of the 48 indicators to measure progress on the goals and targets mentions the international goal of seven-tenths of 1 percent of wealthy nations’ gross domestic products (GDPs) for development assistance, even though the Bush Administration itself affirmed this internationally agreed target at the Monterrey Conference in 2001. However, the larger source of US concern was that the goals reflected a hardening of soft law. Unlike the other Millennium Goals in peace and security and humanitarian protection, the MDGs have moved from very soft law – an Assembly Resolution – to hard international public policy endorsed officially by

18 Reproductive health was inserted into the MDGs – as a target in Goal 5 (maternal health) not a goal in itself – at the 2005 Summit review conference for the MDGs. The US protested. 19 Much of my time in the spring and summer of 2001 was spent discussing drafts of the emerging MDGs with various UN delegations including the G77 developing country caucus, the European Union caucus and the US delegation in order to make sure that the necessary votes for approval would be forthcoming when the Roadmap report was presented to the General Assembly in the coming September.

472  Handbook on global constitutionalism operative institutions such as the World Bank, the IMF, the World Health Organization and others – bypassing an inter-state treaty or agreement. If we measure the hardness of law by how obligatory and either delegated or precise it is (Abbott and Snidal 2000), then the MDGs have indeed significantly hardened the issues they cover in the Millennium Declaration. The Millennium Declaration started out as a soft Assembly resolution: vague, hortatory, and undelegated in substance. When the member states delegated the formulation of a Roadmap report to the Secretariat they set in motion a hardening process that resulted in the MDGs. While all eight MDGs have textual support in the principles and authority provided by various parts of the Declaration, now they have become precise targets and measurable indicators. More importantly, they have become the template for development for the World Bank, the IMF and the UN. They shape the Poverty Reduction Strategy Papers and the UN Development Frameworks that measure the progress of developing countries seeking development grants and loans from the World Bank, the IMF and the UNDP. They increasingly ­influence bilateral donors. In effect, the MDGs are quasi-legislative in the developing world, a long step from the rhetoric they appeared to be in September 2000. If the pushback from sovereign states was most striking in the US campaign to undermine the MDGs and in Ambassador Bolton’s perfervid rhetoric, the more subtle and important pushback came from a much more important source. The goals were hortatory; the key source of implementation was national, not the UN system. Whether the developing countries would actually adopt them in practice and whether the developed world would respond with a genuine partnership to create additional international opportunities for growth were the two decisive factors in what has become their mixed record of success.20 This was soon reflected in the natural development of country-level MDGs that mixed existing development planning with the MDG framework. In some national development plans, the MDGs served as rhetorical window-dressing; in others they played an operational role and became the operative framework for assessing the Bank’s Poverty Reduction Strategy Papers and the UNDP’s UN Development Assistance Framework.21

CONCLUSIONS: CENTRALIZATION, INTEGRATION AND SPILL AROUND Supranationality is one key element of a legal order that separates a constitution from an ordinary treaty. It opens the door to complex agency on behalf of the member states in which authoritative decisions are taken without continuous sovereign consent. It is worth recalling, however, that in the UN constitutional order these decisions are inherently asymmetric, different for some than for other states. This is clearly the case in Charter-based allocations of rights and responsibilities in peace and security, but it appears

See the annual MDG reports of the Secretary-General, the latest being The Millennium Development Goals Report 2016, at http://​www​.un​.org/​millenniumgoals/​2015​_MDG​_Report/​pdf/​MDG​ %202015​%20rev​%20(July​%201)​.pdf. 21 See, for example, International Monetary Fund, PRSP fact sheet (Apr. 2008), at http://​www​ .imf​.org/​external/​np/​exr/​facts/​prsp (‘PRSPs aim to provide the crucial link between national public actions, donor support, and the development outcomes needed to meet the United Nations’ Millennium Development Goals (MDGs)’). 20

The UN Charter and global constitutionalism?  473 whenever the underlying circumstances of state inequality cannot be rectified by the formal equality of multilateral institutions. In addition, supranationality appears in the manner in which seemingly pure administrative agency becomes inherently political when it delegates executive powers. Secretary-General Dag Hammarskjöld famously anticipated this, and the practice of secretaries-general in active mediation in international disputes has confirmed it. Supranationality also emerges in who interprets the implementation of international treaties (the ICJ or the US Supreme Court) and in the assertion of Security Council authority to legislate counter-terrorist responsibilities to all states. It shows up again in delegation of duties to the Secretariat when it leads to inadvertent transfers of authority within the wider UN system, as illustrated by the evolution of the MDGs. In the larger picture, we see that some constitutions centralize, integrate and acquire authority. They start out with sovereign capacities like the US (a strong executive, a federal legislature with direct effect over citizens in the component states) and grow dynamically by formal amendment and informal interpretation, as McCulloch (necessary and proper), the Civil War amendments and the activist interpretation of Commerce Clause federalized both national authority and civil rights.22 Sometimes, in world politics, the constitutions of international organizations, starting out weak, deepen supranationality. They start with very weak constitutions and yet grow dynamically as did the EU, with leadership of the European Court of Justice (ECJ) and the support of the pro-integrationist members. Spillover cooperation caused the need for more cooperation, which was met. A dialogue of exit and voice spiraled toward more integration, as curtailing selective exit was matched by increased voice, and curtaining veto-prone voice by majority voting was met by selective safeguard exit. Each step ratcheted up central authority (Mattli and Burley 1993; Garrett et al. 1998; Weiler 1999). Where the stakes are high; where a small group of leading states is closely connected; there supranational and centralized solutions to cooperation problems sometimes grow (Olson 1971; Snidal 1985). The evolution from General Agreement on Tariffs and Trade (GATT) to the WTO (from a veto to implement to a veto to prevent the enforcement of a trade ruling) is a classic instance. The UN, on the other hand, changed but did not grow in centralized supranational powers; instead of spilling over into deeper cooperation, it spilled around.23 Every growth in central authority and independence met effective sovereign pushback. Integration did not spill over into more demands for greater integration and central authority, but resulted instead in decentralization and disaggregation. The political science principles of rational design suggest that the UN – unlike the EU and US – may have too many members, too little interdependence and too much diversity to sustain an effective centralized supranational authority.24 Its 193 members do not need to ‘hang together’ (they do not, in Benjamin Franklin’s immortal phrase, otherwise ‘hang separately’). Doing so is especially difficult, given diversity. Diversity is 22 Other factors including the weakness of national parties also played a key role in determining the federal-state balance in the US, as noted in Bednar et al. (2001). For the evolving balance between centrifugal and centripetal tendencies, see Deudney (1995). 23 For the related literature on regional integration, see Nye (1977), Wallace (1994) and Schmitter (1970). 24 For a valuable development on the rational design of institutions that discusses these attributes among others to suggest how institutional designs can overcome coordination and cooperation challenges, see Koremenos et al. (2001).

474  Handbook on global constitutionalism constitutionally guaranteed by the Charter in Article 2(4), guaranteeing territorial integrity and political independence, and 2(7), unless international peace and security is threatened. Contrarily, the US Constitution ‘Guarantee Clause’ (IV:4) guarantees that all US states are similarly republican. Similarly, too, the EU guarantees that all candidate members are all democracies that meet the acquis communautaire standards. The UN Charter only requires all states be ‘peace-loving’ (Art. 4.1) – and who isn’t? Where the constitution reflects a hegemonic constitutional moment, the constitutional order can either build or erode. The US supported early European integration and the coalition of Germany and France pushed it forward from that base. The UN Charter reflected in 1945 the predominance of the US at the end of the Second World War. But the Cold War stymied institutional growth and US hegemonic decline pushed evolution in the opposite direction.25 When hegemony declines, supranationality generates sovereign pushback. Weak as it was and is, the UN ‘constitution’ of 1945 still authorizes more than the members are now prepared to cede. Ironically the Charter is thus an especially precious institution, a reservoir of ‘political capital’ for centralized legality and legitimacy granting purposes. It is precious partly because it so difficult to reform today. Today neither the US nor EU would ever rationally design a constitution as weak as the ones they were born with. While today, the world would not design something as strong as the UN Charter of 1945, which cedes authority on international security to a Security Council of 15, even with a Permanent Five veto, or budget authority – in legal effect, global taxation – decisions to a two-thirds vote of a General Assembly of all states without a veto.

REFERENCES Abbott, K. and D. Snidal (2000), ‘Hard and soft law in international governance’, International Organization, 54 (3), 421–56. Alvarez, J. (2006), International Organizations as Law-Makers, New York: Oxford University Press. Austin, R. (1993), ‘Chief Electoral Officer’s Electoral Evaluation: summary report’, United Nations Transitional Authority in Cambodia (UNTAC). Bednar, J., W. Eskridge and J. Ferejohn (2001), ‘A political theory of federalism’, in J. Ferejohn, J. Rakove and J. Riley (eds), Constitutional Culture and Democratic Rule, Cambridge: Cambridge University Press, pp. 223–67. Bolton, J. (2007), Surrender Is Not an Option, New York: Simon and Schuster. Bowett, D. (1994), ‘The impact of Security Council decisions on dispute settlement procedures’, European Journal of International Law, 5 (1), 89–101. Chopra, J. (1999), Peace Maintenance, London: Routledge. Deudney, D. (1995), ‘Sovereignty, arms control and the balance of power in the American states union’, International Organization, 49 (2), 191–228. Doyle, M. (1995), The UN in Cambodia: UNTAC’s Civil Mandate, Boulder, CO: Lynne Rienner. Doyle, M. (2002), ‘Strategy and transitional authority’, in S. Stedman, D. Rothchild and E. Cousens (eds), Ending Civil Wars, Boulder, CO: Lynne Rienner, pp. 71–88. Doyle, M. (2012), ‘Dialectics of a global constitution: the struggle over the UN Charter’, European Journal of International Relations, 18 (4), 601–24. Doyle, M. and N. Sambanis (2006), Making War and Building Peace, Princeton, NJ: Princeton University Press.

For hegemonic cooperation see Keohane (1984), Ikenberry (2001) and Hirsch (1977).

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The UN Charter and global constitutionalism?  475 Dunoff, J. and J. Trachtman (eds) (2009), Ruling the World: Constitutionalism, International Law and Global Governance, Cambridge: Cambridge University Press. Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’, Columbia Journal of Transnational Law, 36 (3), 529–619. Fortna, P. (2004), ‘Does peacekeeping keep the peace?’, International Studies Quarterly, 48 (2), 269–92. Franck, T. (2003), ‘Is the UN Charter a constitution?’, in J. Frowein, K. Schardroth, I. Winkelmann and R. Wolfrum (eds), Verhandeln fur den frieden, New York: Springer-Verlag, pp. 110–19. Garrett, G., R.D. Kelemen and H. Schulz (1998), ‘The European Court of Justice, national governments and legal integration in Europe’, International Organization, 52 (1), 149–76. Goodrich, L. and E. Hambro (1949), Charter of the United Nations: Commentary and Documents, Boston, MA: World Peace Foundation. Gross, L. (1948), ‘The peace of Westphalia: 1648–1948’, American Journal of International Law, 42 (1), 20–41. Gross, L. (1951), ‘Voting in the Security Council: abstention from voting and absence from meetings’, Yale Law Journal, 60 (2), 209–57. Guttieri, K. (1997), ‘Symptom of the moment: a juridical gap for US occupation forces’, International Insights, 13 (special issue), 131–55. Helfer, L. (2003), ‘Constitutional analogies in the international legal system’, Loyola of Los Angeles Law Review, 37 (2), 207–8. Hirsch, F. (1977), ‘Politicization in the world economy: necessary conditions for an international economic order’, in F. Hirsch, M. Doyle and E. Morse (eds), Alternatives to Monetary Disorder, New York: Council on Foreign Relations and McGraw Hill, pp. 9–64. Hoffmann, S. (1968), ‘A world divided and a world court confused: the world court’s advisory opinion on UN financing’, in L. Scheinman and D. Wilkinson (eds), International Law and Political Crisis, Boston, MA: Little, Brown, pp. xi–xix. Ikenberry, J. (2001), After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars, Princeton, NJ: Princeton University Press. Johnstone, I. (1995), Rights and Reconciliation in El Salvador, Boulder, CO: Lynne Rienner. Jones, B. (2003), ‘The challenges of strategic coordination’, in S. Stedman, D. Rothchild and E. Cousens (eds), Ending Civil Wars, Boulder, CO: Lynne Rienner, pp. 89–115. Keohane, R. (1984), After Hegemony: Cooperation and Discord in the World Political Economy, Princeton, NJ: Princeton University Press. Koremenos, B., C. Lipson and D. Snidal (2001), ‘The rational design of international institutions’, International Organization, 55 (4), 761–99. Liu, F.T. (1992), United Nations Peacekeeping and the Non-Use of Force, Boulder, CO: Lynne Rienner. Mattli, W. and Burley, A.-M. (1993), ‘Europe before the court’, International Organization, 47 (1), 41–76. McDougal, M. and R. Gardner (1951), ‘The veto and the Charter: an interpretation for survival’, Yale Law Journal, 60 (2), 258–92. Michelman, F. (2006), ‘What do constitutions do that statues don’t (legally speaking)?’, in R. Bauman and T. Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State, New York: Cambridge University Press. Nye, J. (1977), Peace in Parts, Boston, MA: Little, Brown. Olson Jr., M. (1971), The Logic of Collective Action, Cambridge, MA: Harvard University Press. Plachta, M. (2001), ‘The Lockerbie case: the role of the Security Council in enforcing the principles of aut dedere aut judicare’, European Journal of International Law, 12 (1), 125–40. Ratner, S. (1995), The New UN Peacekeeping: Building Peace in Lands of Conflict, New York: St Martins. Reisman, M. (1993), ‘Constitutional crisis in the United Nations’, American Journal of International Law, 87 (1), 83–100. Roed-Laursen, T. and R. Hooper (1999), Command from the Saddle, Oslo: Peace Implementation Network. Russell, R. (1966), ‘United Nations financing and the law of the Charter’, Columbia Journal of Transnational Law, 5 (1), 68–95.

476  Handbook on global constitutionalism Sarooshi, D. (2005), International Organizations and their Exercise of Sovereign Powers, New York: Oxford University Press. Schachter, O. and C. Joyner (1995), United Nations Legal Order, New York: Cambridge University Press and American Society of International Law. Schmitter, P. (1970), ‘Central American integration: spill-over, spill-around or encapsulation’, Journal of Common Market Studies, 9 (1), 1–48. Scott, R. and P. Stephan (2006), The Limits of Leviathan, Cambridge: Cambridge University Press. Snidal, D. (1985), ‘The limits of hegemonic stability theory’, International Organization, 39 (4), 579–614. Stedman, S. (2003), ‘Policy implications’, in S. Stedman, D. Rothchild and E. Cousens (eds), Ending Civil Wars, Boulder, CO: Lynne Rienner, pp. 663–71. United Nations Millennium Declaration, G.A. Res. 55/2, U.N. Doc. A/RES/55/2 (8 Sept. 2000), at http://​ www​.un​.org/​millennium/​declaration/​ares5552e​.pdf. Wallace, W. (1994), Regional integration: The Western European Perspective, Washington, DC: Brookings. Weber, M. (1947), The Theory of Social and Economic Organization, trans. A.M. Henderson and T. Parsons, T. Parsons (ed.), London: Macmillan. Weiler, J.H.H. (1999), ‘The transformation of Europe’, in J.H.H. Weiler (ed.), The Constitution of Europe, Cambridge: Cambridge University Press, pp. 10–102.

33. Functionalism, constitutionalism and the United Nations Jan Klabbers

INTRODUCTION Since the early twentieth century, international organizations and their legal dynamics have typically and invariably been analyzed from a functionalist perspective (see, for example, Amerasinghe 2005; Sands and Klein 2009; Schermers and Blokker 2011; for discussion, see Klabbers 2014). This has applied to all entities generally recognized as international organizations, including the United Nations (UN). At the same time, many have intuitively realized that the functionalist frame does not really fit multipurpose organizations of universal membership such as the UN and, before it, the League of Nations – there is a strong urge to view these not as functional organizations in the same way as the Universal Postal Union, but as, somehow, special. Earlier functionalists would do so by describing the UN as a ‘general’, perhaps even ‘political’, organization as opposed to the functionally specialized agencies (see, for example, Schermers 1972). In more recent decades, scholars have come to analyze the UN in constitutionalist terms, a move spearheaded by Fassbender (1998) and followed by luminaries such as Habermas (2006), although early forerunners can be found as well (Verdross 1973). This chapter aims to look at the UN from the vantage point of the tension between functionalism and constitutionalism, and will make the point that neither is a particularly suitable framework for understanding the UN. Doing so involves a few preliminary moves that probably need to be spelled out. First, my interest resides with studying the UN as the possible embodiment of global constitutionalism, as this is typically the way it has been approached by international lawyers. This differs from other perspectives: I am, for example, for present purposes less interested in the contribution the UN may or may not have made to global constitutionalism (see Doyle, Chapter 32 in this Handbook). Second, the functionalism I discuss is the functionalism that prevails in the law of international organizations, and as such is different from the functionalism that has informed integration studies, as highlighted elsewhere in this volume (see Dunoff, Chapter 18 in this Handbook).1 Integration functionalists ask themselves how cooperation along functional lines can beget further cooperation. That is an important question, but is different from the question that preoccupies international organizations lawyers; these, instead, wonder how organizations are legally structured, and have found by and large that international organizations are structured along functional lines. Or rather, more accurately perhaps, they have proposed that

If the first version of functionalism Dunoff discusses relates to the contributions of international organizations to global constitutionalism, the second version he discusses does not relate to the function of organizations such as the UN at all, but relates to the functions of constitutionalism. He briefly touches on yet a third version (Isiksel’s ‘functional constitutionalism’) but this, for all its surface appeal, strikes mostly as a contradiction in terms posing as a clever trouvaille. 1

477

478  Handbook on global constitutionalism organizations should be structured along functional lines; there is ground for the proposition that functionalism in the law of international organizations has a strong ideological component – that it is ideology rather than theory (see further, Klabbers 2018). Finally, in order to make my point, I will often refer to my own earlier work. This is not out of self-aggrandizement (my ego, sadly perhaps, is big enough without it), but is necessary in order to make clear just how much the topic under discussion involves epistemological assumptions and builds on arguments made more extensively elsewhere. The constitutional nature of the UN (vel non) cannot meaningfully be discussed without critically discussing the concept of international organization, for example; this, in turn, cannot be done properly without discussing the early work of Reinsch and Sayre (in particular Sayre; see Sayre 1919) and the reception thereof by later writers such as Schermers (Schermers 1972; Schermers and Blokker 2011). There is little space properly to engage in such discussion here, but it so happens that I have done so elsewhere. Hence, the need to refer to earlier work undertaking precisely this investigation, and it is unfortunately also the case that few other authors on the law of international organizations have been interested in doing this sort of work – so I end up referring to myself quite a bit. International organizations, including the UN, are often studied from a functionalist perspective (Virally 1974). The main variable has been the function assigned to the organization by its member states; every concrete legal issue has been discussed in that particular light. That light has been flattering: it made international organizations look good as harbingers of peace and preparing for the ‘salvation of mankind’, in Nagendra Singh’s unforgettable phrase (Singh 1958, p. vii).2 Whether it concerned the precise scope of what organizations can do (their powers or competences); their relationship to the legal orders in which they would operate (issues of personality, privileges and immunities); or whether they would be allowed to admit or expel member states, it was invariably the functioning of the organization that was given pride of place. It followed, almost naturally, that things were very broadly construed: if an organization suggested it might need a power to engage in activity X in order to function effectively, then functionalism demanded that the organization must be seen to possess such a power (Bekker 1994). If an organization claimed it ought not to be sued before a local court because such would impede its functioning, functionalism demanded that the organization be held immune from suit (Reinisch 2000). It was long thought that the same reasoning would cover all existing international organizations, and the very concept of organization tended – and tends – to be broadly defined (Klabbers 2013). It is commonplace to regard regional entities of general jurisdiction as the European Union (EU) or the Organization of American States (OAS) as international organizations. It is equally standard to regard as international organizations entities such as the financial institutions (International Monetary Fund and World Bank, but also local institutions such as the Nordic Investment Bank), as well as some educational actors (for example, the European University Institute), military alliances such as the North Atlantic Treaty Organization (NATO), or ‘member-driven’ actors such as the World Trade Organization (WTO). Even commodity organizations are generally seen as fitting the description, with the cartel-like Organization of Petroleum Exporting Countries (OPEC) the best-known example. Indeed, for almost a century, the discipline has placed almost all forms of cooperation between states in 2 Singh was not just another international lawyer; he sat on the International Court of Justice for 15 years (1973–88), and was its president between 1985 and 1988.

Functionalism, constitutionalism and the United Nations  479 the same cognitive basket.3 The only exception that is sometimes made is when those forms of cooperation appear so loosely ‘institutionalized’ as to lack all or most institutional features: this may or may not apply to entities such as the G20, the Paris Club (debt restructuring) or the Wassenaar Arrangement (arms control), among others (Klabbers 2001a), or the Committees or Meetings of the Parties (COPs or MOPs) set up under multilateral environmental agreements (Churchill and Ulfstein 2000). Even with respect to those entities, despite question marks surrounding their quality as international organizations, the theory of functionalism tends to be applied. That is, functionalism has for more than a century dominated the legal landscape in which international organizations are built, and yet there have always been doubts with respect to international organizations of general jurisdiction: the League of Nations, the United Nations, and regional organizations of general jurisdiction such as the Council of Europe. Earlier textbook writers, perhaps somewhat unwittingly, expressed these doubts in making a distinction between what they would refer to as ‘functional organizations’ and ‘general’ or ‘political’ organizations (Schermers 1972, pp. 24–5). The UN would be an example of the latter, whereas the former group would consist of most (or all, actually) others, whether International Monetary Fund (IMF), European University Institute (EUI) or World Health Organization (WHO). After all, with the functional group, it is usually possible to identify what their main function is, or should be: the IMF is about securing financial stability; the EUI does education; the WHO’s function is to secure global health. By contrast, the function of a general organization such as the UN is much harder to identify, and too much has happened since the creation of the UN to consider it as a functional agency in any meaningful way. Hence, some felt the need to discuss the UN in terms other than those of functionalism, and it seemed that constitutionalism, whatever its precise contents, was a natural choice, precisely because the many tasks of the UN, while defying a functionalist analysis, can all be associated, on some deep intuitive level, with constitutional values. The UN can meaningfully be seen as devoted to global peace: it has the collective security mechanism to back up this claim, and especially its executive arm, the Security Council, is actively engaged in matters of peace. It is equally plausible to discuss the UN in terms of justice: it has come, over the years, to engage in all sorts of activities that are perhaps mostly only tangentially related to peace (think of human settlements, the protection of wildlife, or psychotropic substances) but would fall within many people’s definition of justice. Again, one of its main organs, the General Assembly, is supremely well equipped to discuss and debate questions of global justice, even if it cannot do much else (Klabbers 2005). Then there are the various references in the UN Charter to human rights, and the supremacy clause of article 103 of the Charter, which all suggest that the UN is an international organization unlike all others, and thus should be discussed in other than functionalist terms. In terms of global constitutionalism then, the argument runs that as the UN is not best seen as a functional agency, it must be something else, and that ‘something else’ is that the UN is best seen as the embodiment of global constitutionalism. Whether it contributes to global constitutionalism is a different matter, as is the question what the function of global constitutionalism is. Interesting as these are, the focus of this chapter has to rest elsewhere: on the question whether the UN can meaningfully be portrayed as the personification or embodiment of global constitutionalism, for at least among 3 The decisive moment came with the publication of the influential study by Francis B. Sayre (1919). For the argument explaining Sayre’s influence, see Klabbers (2015).

480  Handbook on global constitutionalism international lawyers this is not an uncommon position to take, however implicitly often. The remainder of this chapter agrees with the point of departure that there is little to gain from applying a functionalist prism to the UN, and further explores two possible manifestations of a constitutionalist perspective. The final section concludes.

FAILING FUNCTIONALISM The functionalist perspective is not all that suitable for the UN, for the good reason that it is next to impossible to identify what the UN’s function is in any meaningful way. This alone should be sufficient to discourage all too enthusiastically functionalist approaches to the UN. However, there is more: the UN has engaged in such a wide array of activities that its powers bear little resemblance to any functionalist model. Its immunity from local jurisdiction has, in practice, become absolute rather than functional; and its relationship with its member states follows anything but functionalist lines. Before illustrating these three points, it is perhaps useful to provide a nutshell overview of functionalism in the law of international organizations.4 Functionalism is a principal–agent theory whereby the principal (the member states) assigns a single function or related set of functions to an agent, the international organization. Typically, the organization is set up for this purpose (it is relatively rare for radically new functions to be assigned to existing agents5); by definition, the principal is itself a collective actor (in that a single state cannot on its own establish an international organization – this requires at least two states); and invariably, the principal is represented with the agent in the form of the plenary organ of the organization, and is therewith in a position to exercise some control over the organization. This control is, however, limited to the relationship between the organization and its members: the member states (indeed, functionalism itself as well) have little to say about relations with actors other than those member states, and have likewise little to say over organizational matters that do not implicate the member states in any direct manner, such as relations between the organization and its civil service, or between the various organs of the organization (Klabbers 2016). Legal relations, then, are structured around the function of the entity, and this presupposes that a function can be identified. If so, subsequent legal questions can be answered under reference to this function, on the presumption that since states assign their agents with a function, it follows that they intend their agents to actually perform this function.6 In theory, this poses few problems: should the question arise whether an entity such as the WHO can conclude an agreement with a private benefactor in order to acquire funds to fight malaria, a functionalist would

At the risk of being repetitive, this is not identical to functionalist integration theory. While the two share some axioms, they ask different questions: integration theorists are interested in how cooperation begets further cooperation, while the lawyers wonder how that cooperation is legally structured. See more broadly Klabbers (2015). 5 Common as it may be to expand functions, there are few examples of organizations originally devoted to function A now being assigned function B or C. 6 This accuracy of the presumption may sometimes be doubted; it has been suggested with respect to various regional organizations, for example, that their existence was meant to solidify the sovereignty of their member states (and the regimes in power within those states), rather than actually to successfully execute a particular instrumental function. See several of the contributions in Acharya and Johnston (2007). 4

Functionalism, constitutionalism and the United Nations  481 answer affirmatively – fighting malaria clearly falls within the remit of the WHO. Should the question arise whether the WHO can conclude an agreement with a private benefactor in order to acquire missile systems, the functionalist answer would be negative: the acquisition of missile systems is clearly not within the remit of the WHO. Should the discussion end here, the theory could do its work, but it rarely does end here. First, many activities fall into a large grey area as being not immediately related to the function of the organization, but not completely isolated from it either. The most obvious example is the purchase of office equipment: the WHO is not set up to buy paperclips (or so one hopes), and yet, the purchase of office equipment is helpful if the organization is to function effectively. We might even take the point further: while the purchase of missile systems is, at first sight, difficult to reconcile with the WHO’s mission, what if the WHO itself thinks that it requires such systems to keep its staff safe while working in conflict zones? If the WHO’s membership unanimously or by large majority reaches this conclusion, then it becomes difficult to argue that the WHO’s membership got it wrong – after all, the WHO members must be considered best placed to identify what contributes to the WHO’s functioning, since the WHO is their creation. Thus put, the doctrine that organizations shall not act outside their competences (the ultra vires doctrine) is not very powerful, and can as a matter of principle always be overruled by the member states acting collectively.7 If the example of the WHO purchasing missile systems may seem far-fetched, the underlying idea has nonetheless been widely accepted ever since the International Court of Justice (ICJ) held, in 1949, that the UN had the competence to file a claim against a state deemed responsible for causing the UN damage, despite the complete absence of any reference to such a competence in the UN Charter. In casu, a UN-appointed mediator had lost his life in the Middle East, and the ICJ found that the UN had the power to file a claim against Israel: the UN could do anything necessary to give effect to its functions.8 This became known as the implied powers doctrine, which has allowed many an organization to develop and expand far beyond the confines of its initial tasks as written down explicitly in its constituent document. It is also on this basis that the UN can justify being active on topics such as drugs and crime prevention, human settlement, the protection of wildlife, the promotion of sustainable development, human rights and gender issues, and much besides. Many of these are not mentioned at all in the UN Charter (with the exception of some oblique references to human rights), but are generally accepted as forming part of the tasks of the UN. The UN has grown into the global equivalent of a Western welfare state, albeit on a far lower level of protection, and despite Dag Hammarskjöld’s classic admonishment that the UN was not created to achieve heaven on earth, but rather to prevent hell from materializing (quoted in Klabbers 2001b, p. 221). The point is, that this state of affairs has only been achieved through an expansion of tasks facilitated by functionalist theory, and while the expansion of tasks of the UN may be a good thing, the same theory also opens the door for organizations to do bad things, or at least things not everyone would accept as benevolent.9 For much the same reason the doctrine was discarded from US corporate law as early as the 1930s; see Horwitz (1994). 8 Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ Reports 174, especially at 182. 9 The UN too has had its fair share of critics, not least within US Congress; these have often been able to mobilize the UN’s ‘mission creep’ as something to rail against and perhaps even to justify the withholding of financing. Seminal is Alvarez (1991). 7

482  Handbook on global constitutionalism Much the same applies to immunities. True to functionalist thought, immunities help protect the UN against intrusion by overzealous litigants and prosecutors, and in line with functionalism, the relevant instruments typically provide that immunities are granted to ‘safeguard the independent exercise of the organization’s functions’. Immunities and privileges are limited, on paper, to words spoken and acts performed by officials, member state representatives and experts on mission in their official capacity, and, again on paper, immunity should be waived by the UN if doing so is in the interest of justice and can be done without prejudice to the purpose for which the immunity was accorded. Reasonable and balanced as this may sound, in practice the UN enjoys something very close to absolute immunity: suits against the UN or its officials tend to go nowhere, even in those cases where it is clear that the UN should shoulder some of the responsibility for either action or inaction, whether it concerns the massacre in Srebrenica or, more recently, the outbreak of cholera through UN peacekeepers in Haiti. The ICJ has held that it mostly depends on the assessment of the Secretary-General of the UN to determine whether acts or words are done or spoken in an official capacity, leading to the obvious temptation for the Secretary-General to allow the institutional interest to prevail.10 When the League of Nations decided in 1920 not to admit Liechtenstein as a new member state, it followed functionalist thinking: Liechtenstein had (and still has) no army, and thus the argument can be made that it was unable to contribute to the functioning of the League – it would be difficult for Liechtenstein to participate in any collective security mechanism. In 1990, long after the League’s demise, Liechtenstein applied for admission to the UN, and was accepted without a problem.11 The change highlights the transformation (some might say degeneration) of functionalist thought on membership issues. While the League was still thinking, for better or worse, in terms of having a serious collective security task and thus accepting those members who could possibly contribute, the UN has grown into something else. Some have lamented that the UN has been far too quick to grant admission to aspiring states and has not taken its own membership criteria too seriously. Instead of accepting all applicants about whom it is possible to agree, the UN should have been guided in its admission policies not by the overwhelming desire to be universal, but by more functionalist concerns, in casu a concern about the liberal pedigree of applicant states, on the basis of the underlying, if unspoken, theory that the UN should function as a league of liberal states (the leading study is Grant 2009).

CONSTITUTIONALIST OVERTURES: BARDO FASSBENDER The idea that, among international organizations, there is something special about the UN would seem to be generally recognized. If nothing else, the UN is primus inter pares: the combination of its general jurisdiction and universal membership guarantees that the UN is often regarded as the most relevant – the archetypical – organization. As a corollary, it is not uncommon to somehow think of the UN as central to international law. This can take place in various forms: international law textbooks may be structured around the UN, as is the case Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, advisory opinion, [1999] ICJ Reports 62. 11 See General Assembly Resolution A/RES/45/1. 10

Functionalism, constitutionalism and the United Nations  483 with the classic Verdross and Simma textbook (1984); or international law may be regarded as largely ‘institutionalized’, on the understanding that the institutionalization stems largely from the UN (Ruffert and Walter 2009). The ICJ itself has contributed to this line of thought by aspiring to conceive of the relationship between the UN and its specialized agencies as one of government and specialized ministries – without the result being very compelling.12 The most explicit conceptualization of the central place of the UN can be found in the work of Bardo Fassbender, appropriating the vocabulary of constitutionalism and endorsed in recent years by none other than Jürgen Habermas.13 Fassbender first set out his thesis in a classic article published in the late 1990s (Fassbender 1998),14 launching the proposition that the UN Charter was to be seen as the constitution of the international community, therewith clearly aiming to depart from any functionalist orientation.15 For Fassbender, the UN Charter displayed several characteristics which make it appropriate to think of it as a constitutional document, rather than the ‘mere’ founding document of an international organization (Fassbender 1998, pp. 573, 577–8). One of these is the supremacy clause of Article 103, holding that in case of conflict between obligations under the Charter and other international obligations, those under the Charter shall prevail (for useful discussion, see Liivoja 2008). Another element was to be found in Article 2, paragraph 6, bringing non-member states into the UN’s fold.16 Moreover, guaranteeing peace and security, and claiming a monopoly on the use of force, is a key characteristic of all governments (Fassbender 1998, p. 574). Like all constitutions, dixit Fassbender, the Charter is concluded with a view to eternity; it has no termination provision, and can only be amended by a kind of supermajority (Fassbender 1998, p. 578). Even the very use of the term Charter is not without significance for, so Fassbender suggests, in 1945 this term was akin to ‘written constitution’, and lest it be forgotten, the Charter opens by aiming to represent the voice of ‘We the peoples ...’ (Fassbender 1998, p. 580). Thinking in terms of the UN Charter as a constitution would have ramifications. Thus, its constitutional nature would help explain application of the Charter to non-member states (Fassbender 1998, p. 593).17 It would also help explain the addition of many new tasks – this would bear testimony to the Charter’s nature as a ‘living instrument’ (Fassbender 1998, pp. 594–5). The Charter’s constitutional nature warrants constitutional interpretation, that is, when in doubt, err on the side of the UN (Fassbender 1998, pp. 595–8). Also, amendment 12 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, advisory opinion, [1996] ICJ Reports 66; for critical discussion, see Klabbers (2009a). 13 In an essay on the putative constitutionalization of international law, Habermas (2006) freely borrows from Fassbender. 14 A decade later the article was, almost unchanged, published as a monograph: see Fassbender (2009). All references will be to the article. 15 More recently, political theorists have posited a federalist – and still largely aspirational – understanding of the UN as embodiment of global constitutionalism. The most prominent of these is Cohen (2012). 16 The ICJ aspired to do much the same in respect of a resolution concerning Namibia, holding that some of the obligations contained in the resolution were ‘incumbent’ upon all states, regardless of whether they were UN members. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), advisory opinion, [1971] ICJ Reports 16. 17 There is possibly an element of bootstrapping here: the Charter can be applied to non-members, which helps explain why it can be applied to non-members.

484  Handbook on global constitutionalism should only take place according to the constitutionally prescribed procedure; that is, following Articles 108 and 109: there is no role for the organic development of customary law in such a constitutional system (Fassbender 1998, p. 600). For all its ingenuity and despite the circumstance that some of his constitutional hallmarks are eminently sensible, Fassbender’s approach is ultimately neither compelling nor generally accepted (see also Walker 2015, pp. 92–3). For instance, there are a number of unresolved tensions between claiming that amendment needs to follow constitutional procedure and that the Charter can nonetheless be seen as a living instrument; or between suggesting that non-member states may be bound by UN law, and the precise wording of Article 2, paragraph 6 of the Charter, which merely instructs the UN to ensure that non-members act in accordance with the principles of the Charter on some topics. That is, it creates an obligation for the UN itself,18 but is not directly creative of obligations for non-member states. More to the point though, Fassbender’s constitutionalism is a rather mechanistic constitutionalism, almost indistinguishable from functionalism or rather, perhaps, representing an incomplete hyper-functionalism. It is incomplete because it says little about membership criteria or privileges and immunities. It is hyper though in being more explicit about the inherent good of the organization: expansion of its powers and activities are welcomed not just because they help the UN to function, but because the UN is constitutional. Exercising authority over non-members is to be welcomed not just because this inheres in the function of the UN, but precisely because the UN is constitutional. That is, the functionalist would have no problem accepting Fassbender’s constitutionalism, and would recognize it as a kindred approach: as hyper-functionalism. If that is the case, then the main value of Fassbender’s pioneering work resides in it being pioneering: he was among the first explicitly to resort to the vocabulary of constitutionalism when discussing the UN, and therewith opened avenues which otherwise would have remained closed off (but see Klabbers 2004).19 What remains curious, though, is that his brand of constitutionalism does little to keep the exercise of public power in check, yet it is here that constitutionalism would have most traction (see Cohen 2012): there is no discussion on how the UN’s authority could be controlled, and this sets Fassbender’s constitutionalism apart from most other attempts to capture the exercise of public power on the international level in constitutional terms.20

LIBERAL CONSTITUTIONALISM? In retrospect, it would seem obvious that the counterpart to functionalism cannot be a hyper-functionalism à la Fassbender. Instead, if constitutionalism is to have any traction, it must be as an alternative to functionalism, addressing some of functionalism’s blind spots (Klabbers 2011). As noted above, one of those blind spots (very possibly the most relevant 18 In one of those paradoxes in which law is so rich, it should perhaps be noted that with respect to the Charter, the UN itself is also in the position of a third party. 19 While Fassbender relies on Verdross, it has also been suggested that for the latter, institutionalization was not a key prerequisite. Instead, Verdross’s argument hinged on jus cogens and a posited international community. See O’Donoghue (2012). 20 Curiously, there is a brief discussion on whether the constitutional nature of the Charter places limits on reforming the Security Council (Fassbender 1998, pp. 606–9), but no discussion on whether there are any limits to what the Council can do.

Functionalism, constitutionalism and the United Nations  485 one) is that functionalism is difficult to reconcile with control of the acts (or inaction) of international organizations. As noted, the ultra vires doctrine is about the only legal doctrine available to functionalism, and this doctrine can always be overruled by the common accord of the member states. External control (by courts, stakeholders, victims, contract partners) has thus far proved to be highly elusive, and this becomes especially problematic when it concerns a multipurpose organization such as the UN, whose function is to function as a global authority. The more obvious version of constitutionalism then for the UN is a liberal constitutionalism, and there are traces to be found in the literature to this effect – almost the entire literature on global constitutionalism is liberal in tone and inspiration, and it could hardly be otherwise (Peters 2006; Wet 2006; Dunoff and Trachtman 2009; Klabbers 2009b; but see Tsagourias (2007), questioning some of the premises underlying the debate). Thus, many would agree that the UN should respect basic human rights standards, even if it is not a party to any human rights treaty. This would help secure that those on the receiving end of sanctions would not find themselves penalized without fair trial, deprived of their property, and would have some access to justice. In particular since the Kadi saga before the Court of Justice of the European Union, such an approach is not terribly controversial.21 However, respect for human rights goes further – or could (or should) go further. It has been noted that sometimes there is a discrepancy between what the political organs of the UN piously wish to achieve, and what the administrative organ is capable of agreeing to in the messy world of politics. The General Assembly may wish the UN to underline ­non-discrimination in its dealings with states like Afghanistan, but if Afghanistan refuses to cooperate then such an arrangement may be hard to come by (the example is derived from Verdirame 2011). Also, sometimes the General Assembly itself oversteps the boundaries of propriety, never more so than when it resolved that Zionism equaled racism. While there is no necessary connection between liberal constitutionalism and review of the legality of governmental acts, there is nonetheless a useful practical connection (see generally Hirschl 2007). As it is, there is no forum where the legality of decisions taken by any UN organ can be tested, with the exception of employment-related decisions. Domestic courts are closed off owing to the UN’s general (and in practice absolute) immunity from suit. In Lockerbie, moreover, the ICJ subtly managed to circumvent the question of judicial review essentially by procrastination,22 and although on occasion the ICJ engages in such review, it does not claim a particular power to do so, the result being that instead of being institutionalized, the faculty of review remains subject to judicial whim. Another element of liberal constitutionalism, many would agree, is democracy, notoriously difficult to achieve on the international level. Stuck with the idea of sovereign states representing their citizens,23 possibly the best we can hope for is the creation of reasonably More controversial is whether member states have a right to civil disobedience against UN authority. The argument is made with some gusto in Tzanakopoulos (2011). 22 Libya had brought cases against the United States and the United Kingdom, respectively, over Security Council sanctions imposed in the aftermath of the Lockerbie bombing. The cases were brought in 1992 and removed from the roll in 2003: in the meantime, the ICJ had refused to indicate interim measures of protection (in 1992) and had found that it had the required jurisdiction to entertain the complaints (in 1998). 23 Intriguingly, the leading attempt to re-think representation in international affairs came up with a remarkably similar system: see Linklater (1998). 21

486  Handbook on global constitutionalism representative institutions, in the sense of institutions in which different geographical areas, different philosophies or civilizations, and different interests, are meaningfully represented (Kuper 2004). There seems to be little reason to declare the UN a ‘constitutional’ organization just yet. Its organs cannot generally be considered representative in the sense just described, with the composition of the Security Council the main eyesore.24 The absence of any kind of judicial review of the actions or inactions of the UN is also difficult to reconcile with any liberal conception of constitutionalism, and while the UN may pay lip service to human rights, its actions often betray such concerns – or rather, to the extent that human rights play a role in the decision-making processes, they tend to play a role when convenient, rather than as basic standards below which no action should take place. The above is certainly a criticism of the UN, but not only of the UN: the global public is also implicated. The UN has developed into an entity that, quite possibly, has too much to do, and too many incompatible demands to meet, so that it can always be criticized from one angle or another. If it imposes collective sanctions on states, it is criticized for causing the suffering of the innocent (for an illuminating study, see Veitch 2007). If it resorts to individual sanctions, it meets with human-rights based critiques. If it were not to impose any sanctions, it would be criticized for neglecting its security function. If the UN sponsors peace processes, it will be accused of ignoring justice; if it focuses on justice, it is chided for endangering peace. This still ignores that neither peace nor justice nor human rights are singular and uncontested ideas. In a pluralist and divided world, all states, nongovernmental organizations, minorities and other interest groups can project their own sentiments on the UN, and it is in the nature of things that the UN cannot please everybody and from all possible angles. Criticizing the UN in these circumstances is a bit too facile: the only way to come to control the UN is by first deciding what kind of UN would be desirable – and that decision has never been taken. This does not mean that the good should be rejected with the bad. As Cohen puts it, the ‘constitutional reading’ of the UN Charter ‘has to be seen as aspirational’ (Cohen 2012, p. 290), and perhaps should continue to be seen in aspirational terms – there is an argument to be made that constitutionalism and related aspirations such as the Rule of Law are never accomplished, but always recede on the horizon just when they seem to come within grasp (Palombella 2010).

CONCLUDING REMARKS The sobering thought occurs that big and important as the UN is, it is literally beyond control. Functionalism is the main operating system behind international organizations, but is structurally unable to keep the UN in check. Constitutionalism fares little better, and in its most explicit and detailed version runs the risk of turning into hyper-functionalism. The UN is different things to different people, and doomed to be damned if it does and if it does not. It is in a class of its own, and the theory to understand it has yet to be invented, as has the theoretical framework to help control it.

Incidentally, the Security Council cannot be considered unrepresentative as such: it represents military power, and does so with reasonable accuracy. Whether this is useful or desirable is a different matter though. For further reflection, see Klabbers (2010). 24

Functionalism, constitutionalism and the United Nations  487 Given that the UN is uncontrollable, a lot comes to depend on whether the organization is populated by decent people for, as Sir Ivor Jennings already posited during the Second World War, the psychology of government can be just as relevant as the way government is organized (Jennings 1943). Trite as this may sound, it represents an important insight: the way an organization such as the UN works is never merely a matter of institutional design, but is ultimately also a matter of what kind of individuals are responsible for its day-to-day management, its policies and the ways the organization implements its mandate. In classical terms, the possible virtues of the UN’s leadership assume relevance, and with this in mind, it is heartening that at least one Secretary-General emphasizes the relevance of ethics (see also Fröhlich 2008). On taking the oath of office, in 2006, Ban Ki-moon underlined that he would ‘seek to set the highest ethical standards’. Laudable as this is, it remains doubtful whether his understanding of ethics worked as planned. He mentioned ‘efficiency’ in the same breath, which already strikes as odd but, more importantly, he seemed to think that ethics is predominantly a matter of the disclosure of financial interests.25 In the wake of the Oil for Food scandal that plagued his predecessor such may be understandable, but surely, there is much more to ethics than financial disclosure. One aspect the Secretary-General could think of is taking responsibility for things happening on the UN’s watch, such as the outbreak of cholera. Without necessarily sacrificing immunity from suit, surely common decency suggests that a public apology might be in order. It is precisely this common decency that neither functionalism nor constitutionalism can grasp.

REFERENCES Acharya, A. and A.I. Johnston (eds) (2007), Crafting Cooperation: Regional International Institutions in Comparative Perspective, Cambridge: Cambridge University Press. Alvarez, J. (1991), ‘Legal remedies and the UN a la carte problem’, Michigan Journal of International Law, 12 (2), 229–311. Amerasinghe, C.F. (2005), Principles of the Institutional Law of International Organizations, 2nd edn, Cambridge: Cambridge University Press. Bekker, P.H.F. (1994), The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities, Dordrecht: Martinus Nijhoff. Churchill, R.R. and G. Ulfstein (2000), ‘Autonomous institutional arrangements in multilateral environmental agreements: a little-noticed phenomenon in international law’, American Journal of International Law, 94 (4), 623–59. Cohen, J.L. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism, Cambridge: Cambridge University Press. Dunoff, J.L. and J. Trachtman (eds) (2009), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press. Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’, Columbia Journal of Transnational Law, 36 (3), 529–619. Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community, Leiden: Martinus Nijhoff. Frohlich, M. (2008), Political Ethics and the United Nations: Dag Hammarskjold as Secretary-General, Abingdon: Routledge. Grant, T.D. (2009), Admission to the United Nations: Charter Article 4 and the Rise of International Organization, Leiden: Martinus Nijhoff.

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488  Handbook on global constitutionalism Habermas, J. (2006), The Divided West, Cambridge: Polity Press. Hirschl, R. (2007), Towards Juristocracy, Cambridge MA: Harvard University Press. Horwitz, M. (1994), The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy, Oxford: Oxford University Press. Jennings, I. (1943), The Law and the Constitution, 3rd edn, London: University of London Press. Klabbers, J. (2001a), ‘Institutional ambivalence by design: soft organizations in international law’, Nordic Journal of International Law, 70 (3), 403–21. Klabbers, J. (2001b), ‘The changing image of international organizations’, in J.-M. Coicaud and V. Heiskanen (eds), The Legitimacy of International Organizations, Tokyo: United Nations University Press, pp. 221–55. Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58. Klabbers, J. (2005), ‘Two concepts of international organization’, International Organizations Law Review, 2 (2), 277–93. Klabbers, J. (2009a), ‘Global governance at the ICJ: re-reading the WHA Opinion’, Max Planck Yearbook of United Nations Law, 13 (1), 1–28. Klabbers, J. (2009b), ‘Setting the scene’, in J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization of International Law, Oxford: Oxford University Press, pp. 1–44. Klabbers, J. (2010), ‘Reflections on the politics of institutional reform’, in P. Danchin and H. Fischer (eds), United Nations Reform and the New Collective Security, Cambridge: Cambridge University Press, pp. 76–93. Klabbers, J. (2011), ‘Contending approaches to international organizations: between functionalism and constitutionalism’, in J. Klabbers and A. Wallendahl (eds), Research Handbook on the Law of International Organizations, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 3–33. Klabbers, J. (2013), ‘Unity, diversity, accountability: the ambivalent concept of international organisation’, Melbourne Journal of International Law, 14 (1), 149–70. Klabbers, J. (2014), ‘The emergence of functionalism in international institutional law: colonial inspirations’, European Journal of International Law, 25 (3), 645–75. Klabbers, J. (2015), ‘The EJIL foreword: the transformation of international organizations law’, European Journal of International Law, 26 (1), 9–82. Klabbers, J. (2016), ‘Theorising international organisations’, in A. Orford and F. Hoffmann (eds), Oxford Handbook of the Theory of International Law, Oxford: Oxford University Press, pp. 618–34. Klabbers, J. (2018), ‘What role for international organizations in the promotion of community interests? Reflections on the ideology of functionalism’, in E. Benvenisti and G. Nolte (eds), Community Obligations in Contemporary International Law, pp. 86–100. Kuper, A. (2004), Democracy Beyond Borders: Justice and Representation in Global Institutions, Oxford: Oxford University Press. Liivoja, R. (2008), ‘The scope of the supremacy clause of the United Nations Charter’, International and Comparative Law Quarterly, 57 (3), 583–612. Linklater, A. (1998), The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era, Cambridge: Polity Press. O’Donoghue, A. (2012), ‘Alfred Verdross and the contemporary constitutionalization debate’, Oxford Journal of Legal Studies, 32 (4), 799–822. Palombella, G. (2010), ‘The rule of law as an institutional ideal’, in L. Morlino and G. Palombella (eds), Rule of Law and Democracy: Inquiries into Internal and External Issues, Leiden: Brill, pp. 3–37. Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental international norms and structures’, Leiden Journal of International Law, 19 (4), 579–610. Reinisch, A. (2000), International Organizations before National Courts, Cambridge: Cambridge University Press. Ruffert, M. and C. Walter (2009), Institutionalisiertes Völkerrecht (Institutionalized International Law), Munich: Beck. Sands, P. and P. Klein (2009), Bowett’s Law of International Institutions, 6th edn, London: Sweet and Maxwell. Sayre, F.B. (1919), Experiments in International Administration, New York: Harper. Schermers, H.G. (1972), International Institutional Law, Leiden: Sijthoff.

Functionalism, constitutionalism and the United Nations  489 Schermers, H.G. and N.M. Blokker (2011), International Institutional Law: Unity within Diversity, 5th edn, Leiden: Martinus Nijhoff. Singh, N. (1958), Termination of Membership of International Organisations, London: Stevens & Sons. Tsagourias, N. (ed.) (2007), Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge University Press. Tzanakopoulos, A. (2011), Disobeying the Security Council: Countermeasures against Wrongful Sanctions, Oxford: Oxford University Press. Veitch, S. (2007), Law and Irresponsibility: On the Legitimation of Human Suffering, Abingdon: Routledge. Verdirame, G. (2011), The UN and Human Rights: Who Guards the Guardians?, Cambridge: Cambridge University Press. Verdross, A. (1973), Die Quellen des universellen Völkerrechts: Eine Einführung (The Sources of Universal International Law: An Introduction), Freiburg: Rombach Verlag. Verdross, A. and B. Simma (1984), Universelles Völkerrecht (Universal International Law), 3rd edn, Berlin: Duncker & Humblot. Virally, M. (1974), ‘La notion de fonction dans la théorie de l’organisation internationale’, in S. Bastid et al. (eds), Mélanges offerts à Charles Rousseau: La communauté internationale, Paris: A. Pedone, pp. 277–300. Walker, N. (2015), Intimations of Global Law, Cambridge: Cambridge University Press. Wet, E. de (2006), ‘The international constitutional order’, International and Comparative Law Quarterly, 55 (1), 51–76.

34. The European Union and global constitutionalism Jo Shaw

INTRODUCTION This chapter examines narratives of constitutionalism and the ebb and flow of constitutional ideas and practices within and across the European Union (EU) and its member states from the inception of the treaties to the present day. The underlying question is this: to what extent does the EU manifest a ‘constitutional’ legal and political order? Alongside that question is the one that inevitably arises in the context of a dynamic regional integration project such as the EU, which is the question of change. Is the EU changing in terms of its engagement with constitutional ideas and practices, and if so, is it to be understood as becoming more, or less, constitutional over time? Methodologically this raises extremely difficult questions: How do we evaluate and ‘measure’ the ‘level’ of constitutionalism within a polity, especially one that is not a state? This chapter adopts a normative approach, in the sense that it assesses above all the role of legal rules in underpinning the content of a constitutional framework, and it gives priority to the treaties and to the role of the Court of Justice of the European Union (CJEU). However, it does not deny the social content of constitutionalism, especially issues of legitimacy. Consequently, we also need to take into account the context of the ebbs and flows of legal rules. What types of changes to the (economic, political and geopolitical) environment in which the EU and the member states operate have made most difference to the constitutional dimension of European integration? To answer these questions, we need a definition of ‘constitutionalism’. This chapter adopts the terms set by the introduction to this Handbook (Lang and Wiener, Chapter 1). We can assess issues of constitutionalism across the dimensions of the rule of law, the balance or separation of powers, and the concept of constituent power. As we shall see in the conclusion, the choice of these elements of focus for global constitutionalism is highly consequent for the EU. For the EU, as a legal and political order, has long reflected its constituent member states’ highly ambivalent engagement with many aspects of popular sovereignty in the post-war period, as a reaction to the totalitarian past. This had led, in the view of Müller (2016), to a preference for the fragmentation of power and a suspicion of populist politics that has spilled over into expectations about what the EU is, and what it should do. We return to this theme at the end of this chapter. As we shall see, in many ways nothing has changed. Yet everything has. A handbook on constitutionalism written 30 to 40 years ago would have been unlikely to feature the EU (that is, what was then the ‘European Communities’) as one of its case studies. It would have focused on national case studies, and perhaps the migration of constitutional ideas across state borders. Only a narrow cadre of scholars of European Community law might have pressed the argument that European integration was, from the beginning, to be understood as more than ‘just’ an international pact about trade and that this ‘project’ was well on the way, by 490

The European Union and global constitutionalism  491 the 1980s, to evincing distinctive constitutional features stemming from its supranational legal order. More generally, the very idea of global constitutionalism was at best a marginal concept in the 1980s, and even well into the 1990s. However, in the third decade of the twenty-first century, the world looks – especially from an institutional perspective – very different, with many global and regional international institutions that are based on legal frameworks with quasi-constitutional characteristics and functions, and supported by the discourses of ‘rule of law’, ‘human rights’ and ‘separation of powers’, even while the status and effectiveness of such institutions, such as the International Criminal Court, continue to be contested. In that context, the EU lies at the very heart of a radically changed institutional and normative landscape, which has sometimes been characterised, rather prematurely, as a ‘postnational’ world. This chapter examines the evolution of this landscape, traversing the landscape from well-trodden ‘historical’ terrain towards more recent, and less well-understood developments. In the conclusion, we return to the question of ‘what type of EU constitutionalism in what type of world’, applying a brief critique of the utility of the idea of ‘postnationalism’ in the context of rising tides of populist politics and politicians, in the EU, in the EU’s neighbourhood and elsewhere in the world as well as other challenges to the norms of liberal democratic constitutionalism (Eisler et al 2022). In that context, the open question remains the extent to which the EU can remain a bulwark for global constitutionalism in an increasingly uneasy world, given the ongoing challenges of parsing possible tensions between constitutionalism, on the one hand, and integration on the other.

AN EVER-CHANGING UNION WITH SHIFTING NARRATIVES OF CONSTITUTIONALISM The Dominant Legal Narratives of Constitutionalism: the Guise of Legal Integration Despite the relatively recent emergence of a formal narrative of constitutionalism into the public discourse of the EU and its institutions, many of the ‘constitutional’ features of the EU have been well established as legal doctrines since the 1960s and 1970s. This can be attributed to decades of fairly consistent activism based on a teleological approach to the interpretation of legal texts on the part of the CJEU when it came to the shaping of the core features of the EU’s legal order in view of its often implicit and sometimes explicit understanding of the ‘project’ of European integration. This is what we should term the ‘constitutionalisation of the treaties’. The CJEU handed down a series of formative judgments1 that put in place key legal concepts such as the direct effect, direct applicability and the primacy of EU law (de Witte 2021). Together these established what came to be seen, from the perspective of EU law, as a hierarchy between national law and EU law, with the latter taking precedence over the former and being directly enforceable within domestic legal systems. Over time, this case law became well known not just among lawyers, but also across a wider circle of specialists on European integration, although it rarely if ever received much public attention. As a result prevailing national myths about what the EU was or is, and what it was not or is not have tended to dominate public discourse at the national level.



1

Case 26/62 Van Gend en Loos ECLI:EU:C:1963:1; Case 6/64 Costa v ENEL ECLI:EU:C:1964:66.

492  Handbook on global constitutionalism One of the leitmotivs of this constitutionalisation process was the emphasis on the uniform application of (what is now) EU law within and across the member states, and the role of national courts and national institutions in enforcing the law in a multilevel constitutional system (Tridimas 2015). The possibility and – in some circumstances – the requirement for national courts to refer questions of EU law which arose in cases before them to the CJEU for a ruling on interpretation (or where appropriate a ruling on the validity of EU law measures) has been a crucial connection between the two systems. Originally to be found in Article 177 EEC, this reference procedure is now located in Article 267 of the Treaty on the Functioning of the European Union (TFEU). The existence and emergent utility of the preliminary reference procedure emphasised that from the very start an embryonic European Community constitutional structure was bound to be dependent upon a central legal core based on a uniform conception of supranational law enforceable by national courts as well as by the CJEU. This is a phenomenon that political scientists have often termed ‘legal integration’ (e.g. Garrett 1995; Alter 1996). In addition, the CJEU also worked through concepts of fundamental rights and ‘legal basis’ (that is, the scope of EU competences) in order to develop the autonomy of the EU legal order, and to strengthen the claim that it is based on the rule of law and human rights. The CJEU was not afraid of the idea of constitutionalism; in the 1986 case of Les Verts,2 it described the treaties as the European Community’s ‘constitutional charter’. Many have argued that the CJEU, in this case law, was channelling the spirit of ‘ever closer union among the peoples of Europe’ as one of the original aims of the European integration process, owing much to the intentions of the original functionalist framers of the treaties, such as Jean Monnet, Robert Schumann and Walter Hallstein. This phrase was included in the Treaty of Rome 1957. It has survived into the present-day Treaty on European Union (TEU) which now underpins the EU. Some shocks or changes have called into question the durability and cohesive spirit of the phrase, but not its inclusion in the treaties. An exception concerned the so-called renegotiation by the UK of its terms of membership, prior to the referendum held in June 2016 on whether the UK should remain in or leave the EU. A Decision of the Heads of State and Government meeting within the framework of the European Council3 appeared to envisage a reconsideration of the nature of ‘ever closer union’ in a way that could have been compatible with the UK’s choice to refute the possibility of further political integration and to seek an ongoing exceptionalism in relation to some of the disciplines of integration. In the event, any question about the future effects of this commitment (and indeed whether they could be incorporated within the existing treaty structure) were nugatory, because the UK voted narrowly to choose the path of ‘Brexit’. It is worth mentioning that in its case law up to the date of Brexit, the CJEU rarely mentioned this phrase, but tended to use instead formalist justifications based on the notion of a community ‘under law’.4 In the case of Wightman, brought by UK parliamentarians in order to ascertain the question whether the notification given by the UK under Article 50 TEU regarding the intention on the part of the UK to withdraw from the EU could be unilaterally withdrawn, the CJEU seemed to make a substantive step forward in elaborating to some

Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166. Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union [2016] OJ C691/1. 4 Opinion 1/91 Draft EEA Agreement ECLI:EU:C:1991:490. 2 3

The European Union and global constitutionalism  493 degree upon the ‘ever closer union’ as instantiating the very purpose of the EU.5 In a case which, as Niamh Nic Shuibhne (2021) notes, we are destined to understand in the future as being more about the fundamentals of the EU legal order than it is about Brexit as such, the CJEU used the opportunity to emphasise the voluntary nature of the ever closer union and of European integration more generally in order to reach the conclusion that such a notification could be unilaterally withdrawn. Moreover, it is important to note the CJEU’s position has never been legally and constitutionally unassailed, but has seen significant challenges coming from the constitutional courts of (some of) the member states. Since the legal framework underpinning European integration is a multilevel system incorporating both a ‘supranational’ and a ‘national’ level, the role of the member states needs to be taken into account. The German Federal Constitutional Court in particular has always been noticeable for adopting a position that accords only a conditional ‘primacy’ to EU law, based on its understanding of the primary reference point for its work being those parts of the German constitutional framework which sustain the nature of Germany as a sovereign state. These claims are incompatible with the claims made by the CJEU about the character and primacy of EU law, but for decades the two courts avoided coming directly into conflict with each other (Pernice 2014). As the issues around the rule of law and the relationship between judicial and political institutions within the member states and the EU itself have become increasingly prominent, this uneasy equilibrium has become every harder to sustain. The Travails of Political Narratives of Constitutionalism in an EU Dominated by Member States In parallel with and in frequent contrast to these legal developments, the political dimension of the European integration process in other spheres continually seemed to lurch from crisis to crisis, with the member states and European institutions seemingly making little substantive progress on core tasks such as the completion of the single market, let alone the creation of a common commercial policy, the establishment of a common external border, the removal of passport controls and identity checks at internal frontiers, or the creation of a single currency and a monetary union. While to some extent the problems could be put down to exogenous factors such as the oil crises of the 1970s and the widespread recession in the global economy in the 1980s, in general the diagnosis given for the paralysis was that there were too many intergovernmental blockages in the legislative process so that the European Community was, for the most part, not working as intended. These blockages were only partially offset by supranational judicial developments guaranteeing the effectiveness of the treaty-based market freedoms. That is, negative integration (the application of those parts of the treaty prohibiting certain types of national barriers or restrictions, for example, on goods or services) did not fully compensate for the absence of positive integration, in the form of, say, common standards for the goods and services to be traded across borders within the so-called ‘common market’. It was sometimes said at the time that the European Communities seemed to be in the ‘last chance saloon’ by the middle of the 1980s.



5

Case C-621/18 Wightman ECLI;EU:C:2018:899.

494  Handbook on global constitutionalism It was at this point that a group of heads of state and government predominantly from centre-right parties joined forces with a Commission President from the centre left (Jacques Delors) to agree upon the political necessity of completing what came to be known as the ‘single market’ (essentially the common market, with an additional political spin). The main selling points concerned the benefits for citizens from enhanced economic integration; politicians rarely highlighted the possibility of offering enhanced guarantees of ‘social Europe’ (for example, more secure and effective employment protection) through measures taken at the EU level. To give effect to this political impulse, the member states negotiated the Single European Act, as the first treaty substantially to amend the treaties of the 1950s. It was intended to kick start the completion of the single market, the creation of a frontier-free Europe and the finalisation of the common external border for goods in particular. It led the member states, with tiny steps initially, along the road towards greater cooperation across borders in the areas of justice and home affairs and foreign and security policy. One significant change was the development of a legislative procedure which required only a qualified majority in the Council of Ministers and which gave greater powers to the European Parliament (EP). After some tweaking in subsequent treaties, this procedure has emerged as the ‘ordinary legislative procedure’, installing the EP as co-legislator alongside the Council for many fields of EU law. It now covers not only core market matters including state aid, regulated markets and competition law, but also many important flanking policies such as environmental policy and regional policy and has been introduced to an ever greater extent even in more sensitive areas such as justice and home affairs and social policy. The Single European Act (SEA), which entered into force in 1986, was only the first in a rash of new treaties, which have incrementally redesigned what we now call the EU in such a way as to make it more closely resemble, in approach and activities, the federal or confederal level in a federal state or a confederation rather than an international organisation. There was a gradual accretion of competences at the EU level, alongside an increased willingness to exercise those competences. This has meant a de facto alignment of the EU and many constitutional ideas and a fair amount of litigation that has tested the scope of both internal and external competences. In addition, from 1989 onwards it became apparent that the EU was going to need to adjust rapidly to profoundly changed geopolitical circumstances in Europe and Eurasia, with enlargement policies and a new neighbourhood policy (both policies still incomplete) now on the agenda. However, as we shall see, the impulse to enhance European integration through treaty change has not gone unchallenged at the national level. First came the Treaty of Maastricht, which entered into force in 1993 after initial rejection by the Danish electorate in a referendum followed by subsequent approval. Reassuring noises on issues that concerned Denmark and its citizens were made by the other member states in the form of a non-binding declaration, some elements of which were built into subsequent treaties. The Maastricht Treaty introduced the notion of ‘European Union’, creating a ‘pillar structure’ to draw out distinctions between ‘core matters’ managed according to the so-called ‘community method’ (involving the EP) and areas of intergovernmental cooperation in the fields of justice and home affairs and foreign and security policy, and created the legal framework for the introduction of the euro as a single currency. The concept of ‘subsidiarity’, intended to ensure that decisions are taken as closely as possible to the citizen, was introduced by this treaty, as well as the legal figure of the ‘citizen of the Union’. As a legal concept, EU

The European Union and global constitutionalism  495 citizenship is based on the national citizenship laws of the member states, as only nationals of the member states are EU citizens. The Treaty of Maastricht presented a dilemma for the EU institutions and the member state governments. On the one hand, it represented an important political step away from a primarily utilitarian and economistic justification for European integration, based on trade and markets. On the other hand, it was the first European treaty to be rejected in a popular referendum (although an earlier ‘political’ treaty in the area of defence cooperation in the 1950s had failed a parliamentary ratification hurdle in France). This raised the spectre and possibility that the citizens of the member states might not actually want ‘more Europe’, even though steps such as the removal of internal borders (Schengen) and the creation of the euro currency (at least initially) were popular. This was a new equation for political elites to try to work out, and it remains unsolved more than 20 years later. From that time onwards, Eurosceptic tropes arguing that the EU has a ‘democratic deficit’, that there is a gulf between the EU and its institutions and ordinary citizens, and that the EU has been illegitimately eroding the national sovereignty of its member states have never been far below the surface of the ongoing debate about the trajectory of the EU. However, the primary response of EU institutions and member states has been to press on with treaty development intensively for most of the two following decades, adding many features to the EU as a political and legal structure that could be viewed as more ‘constitutional’ in nature. The political rationale for doing so was that such changes also made it easier for the EU to act in what was seen to be the best interests of citizens – in terms of promoting their security, their prosperity and their capacity to live peacefully together. In terms of the legitimacy of the EU and its rule-making, this raises many complexities. In the search to do more and better at the EU level, member states have not always paid attention to how arguments about democratic legitimation in a multilevel polity can mesh effectively. In many respects the argument that the process of EU rule-making enjoys a double democratic legitimation through the role of the (nationally elected and legitimated) Council of Ministers and the (supranationally elected) EP gains little traction with ‘ordinary’ voters who find it opaque. In addition, member states buttressed these formal developments with important extra-legal changes, notably the introduction of the so-called ‘Copenhagen criteria’, which determine whether or not a candidate member state qualifies for membership of the EU. For our purposes, the most important of these criteria are the political criteria: respect for democracy, human rights, rule of law and protection of and respect for national minorities. Eventually, these criteria were incorporated in the treaties, and now appear as foundational values of the EU in Article 2 of the TEU and are referenced in Article 49 TEU concerned with the accession of new member states and in Article 7 TEU, which establishes a procedure for the suspension of some or all of the rights of membership on the part of a member state found to be in ‘serious and persistent breach’ of those values. It is useful to cite these in full. While they might sometimes be thought only to have rhetorical value, they have increasingly put in an appearance in recent CJEU case law as the main buttresses of a ‘constitutional’ approach: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The second of the major revising treaties was the Treaty of Amsterdam, which entered into force in 1999. This treaty, negotiated at a point in the political cycle when the EU had

496  Handbook on global constitutionalism a majority of centre left governments, strengthened and mainstreamed cooperation in justice and home affairs, and social policy, and enhanced the EU treaty provisions on fundamental rights and the right to non-discrimination. Following very rapidly on the heels of the Treaty of Amsterdam came the Treaty of Nice. Signed already in early 2001, the entry into force of the Treaty of Nice was delayed until 2003 by the need to hold a second referendum in Ireland. This treaty was intended to prepare the EU for a ‘big bang’ post-1989 enlargement, but it was more of a tidying up exercise that recognised the increasing importance of flexibility within the EU system and introduced a new provision that could allow the EU as a whole to sanction a member state that stepped significantly out of line in relation to matters of democracy, the rule of law, or fundamental rights. Most recently, we have the Treaty of Lisbon, which entered into force in 2009. This treaty was once more rejected and then later approved by Irish voters in two referendums. It revised and reviewed the overall structure of the treaties so that the basis for primary EU law is now the TEU and the Treaty on the Functioning of the European Union, removing the historic ‘community’ and ‘union’ ‘pillar’ distinction between the more supranational and more intergovernmental aspects of the EU’s work. It introduced significant changes in the area of external policy (both commercial policy and foreign and security policy) and completed the process of mainstreaming most areas of justice and home affairs cooperation, under the ordinary legislative procedure. The treaty also established that the EU’s Charter of Fundamental Rights, originally adopted in a non-treaty and non-legally binding format in 2000 (‘solemnly proclaimed’), had the same legal value as the treaties. This has resulted in the CJEU making more substantial use of the rights contained in the Charter in its case law, notwithstanding the efforts of member states to ring-fence the scope of the Charter by reference to the scope of EU law. In fact, the roots of the Lisbon Treaty can also be traced to the beginning of the 2000s when the member states started preparing the ground for the negotiation for what became known as the Constitutional Treaty. The Constitutional Treaty does not appear on the list of amending treaties, as it never came into force. Like the Charter of Rights, it was originally negotiated in a convention, which comprised representatives not only of member state governments, but also of national parliaments, the EP, and the European Commission. Empowered by the Laeken Declaration of the European Council, the convention worked via plenary deliberation, the circulation of papers and drafts, along with working groups with focused tasks. Much of the work of the convention was in public, eschewing in large part the ‘behind-closed-doors negotiation-amongst-diplomats’ style of an intergovernmental conference (IGC). However, it was widely regarded as working ‘under the shadow’ of the IGC – that is, it did not enjoy a free hand, regardless of the likely wishes of the member states. That which was politically feasible could be included in the Constitutional Treaty – or so the argument went. The Constitutional Treaty finalised by the Convention in 2003 was largely adopted in unchanged form by the governments of the member states and formally adopted and signed in an IGC in 2004. Despite having been subjected to the political sense-test of an IGC, it did not prove congenial to voters. It was decisively rejected in referendums held in France and the Netherlands in 2005. As a result, ratification was never completed and the treaty was set aside. The results in these referendums gave rise to a further crisis of confidence about the trajectory and sustainability of the EU as an evolving polity, but this did not deter the member states from picking up much of the material contained in the Constitutional Treaty and putting it into the Treaty of Lisbon under a different form just two years later. However, although it had

The European Union and global constitutionalism  497 much of the same content and achieved most of the same legal effects, the Treaty of Lisbon as presented for national ratification was a text shorn of the symbols of proto-statehood to which the Constitutional Treaty referred (flag, anthem and motto). The ‘constitution’ title was dropped. While the discourse of constitutionalism had become well established in scholarship about the EU, after the demise of the Constitutional Treaty, the term has largely disappeared from official discourse. On the contrary, the only constitutional requirements and traditions to which the Treaty of Lisbon refers are those of the member states. We can summarise these ebbs and flows as follows: the post-Lisbon treaty basis for the EU looks quite different to the post-SEA European Community, which contained only a separate ‘leg’ of tentative intergovernmental European political cooperation in the foreign policy sphere. Now foreign and security policy is substantially mainstreamed into the core of Union activities, even if in practice it remains incomplete. Yet the basic institutional structure – although more complex than it was in the 1980s – is still recognisably the same one, rooted in the idea of a European Commission (as an embryonic European executive), the EP (directly elected since 1979), the Council of Ministers (with much of its work prepared by the Committee of Permanent Representatives) and the CJEU. The regular meetings of the heads of state or government, which have taken place since the early 1970s, have been institutionalised as the European Council, which now has its own president elected by the leaders and accountable to them for his or her performance. Meanwhile the President of the Commission remains politically accountable to the EP, and in 2014 the Parliament unilaterally implemented the so-called ‘leading candidates’ (Spitzenkandidaten) scheme, which the member states equally unilaterally ignored in 2019, choosing their preferred candidate from the electorally dominant European People’s Party (Ursula von der Leyen) not the Spitzenkandidat (Manfred Weber) to be the European Commission President after the 2019 EP elections. Ultimately, the EP acquiesced in this powerplay. There also remains a ‘national’ presidency circulating among the member states on a six-monthly basis, but its importance in preparing the legislative work of the EU or acting as a symbolic political reference point is much downgraded compared with the capacity of the presidency between the 1980s and the 2000s to act as a catalyst for change (or conversely a brake on new developments). Finally, to form a bridge between the Commission and the European Council, the member states have created the position of High Representative of the Union for Foreign Affairs and Security Policy. The territorial scope of the EU has also changed dramatically since the 1980s. Much of this change can be attributed to the effects of the fall of the Berlin wall in 1989, the reunification of Germany in 1990 (which effected an internal enlargement to absorb East Germany) and the breakup of the Soviet Union (in 1991) and Yugoslavia (from 1991 onwards). As with Greece, Spain and Portugal, when they emerged into the arena of liberal democracy, so the new democracies of central and Eastern Europe and – to a lesser extent – south-east Europe have been brought into the fold of the EU. There are now 27 member states (with only Croatia joining since the last treaty revision entered into force and the UK having left), and there have been numerous referendums on membership since the 1970s, with only Norway, in 1972, opting not to join after signing an accession treaty. In the Western Balkans, there are a large number of prospective new member states, with Serbia and Montenegro at the head of the queue. Enlargement talks with Turkey have foundered. Although Iceland flirted briefly with membership in the wake of the chaos wrought by the financial crisis and the failure of its banks in the late 2000s, this has not been taken further. Nor have Switzerland’s periodic flirtations with membership amounted to anything substantial. However, Norway, Iceland and

498  Handbook on global constitutionalism Liechtenstein are firmly linked to the EU through the European Economic Area agreement, which creates a framework for single market-like cooperation between those states (which are members of the European Free Trade Association); Switzerland, meanwhile, maintains a close bilateral relationship with the EU based on a complex and often contested network of treaties. However, the issue of EU membership exploded dramatically into life again, after having been politically frozen for nearly a decade, in the wake of the Russian invasion of Ukraine and the applications by Ukraine, Georgia and Moldova (the latter two being also countries that feel threatened by Russia) to join the EU. Crisis and Constitutionalism in the Integration Process since 2016 Since 2016, the EU has been facing a series of serious challenges to the integration process, and thus to its closely associated commitment to integration through law and the upholding of classic liberal democratic constitutional principles. Perhaps its most serious existential crisis came in the wake of the UK’s referendum vote on 23 June 2016. This vote mandated the UK government, by a margin of 52 per cent to 48 per cent, to negotiate withdrawal from the EU, and after a protracted process, which saw two changes of Prime Minister in the UK and a General Election in December 2019 held explicitly on the mandate to ‘get Brexit done’, the UK left the EU on 31 January 2020, with a transitional period that lasted until 31 December 2020. Since that date, the UK has been a third country vis-à-vis the EU, subject only to the requirements of the Withdrawal Agreement, which protects, inter alia, the rights of UK citizens in EU member states and nationals of the member states in the UK and the Trade and Cooperation Agreement concluded in great haste to govern post-Brexit relations. Relations between the UK and the EU have been tense, but they have not – to the surprise of some but no means all commentators – posed a substantial threat to the EU (Laffan 2019) or resulted in major changes to the nature of EU law (Nic Shuibhne 2021). Even so, the UK’s referendum vote is seen by many as just one among a number of signals of a growing malaise among the populations of the member states about the idea of the EU as a constitutional and continental destiny for practices of cooperation between states in Europe. Euroscepticism, in various guises, is present in every member state, and especially publicly visible among the substantial numbers of Members of the EP, elected every five years, who represent Eurosceptic parties. In policy terms, the EU is also much changed. It engages with a wider range of policy areas, which are intended to foster closer integration between the member states; these extend into the monetary, security, justice and home affairs areas, as well as the traditional trade domains. Beyond the focus on trade in goods, which was the main emphasis of the Single European Market, there have been increasing attempts to create better conditions for the cross-border mobility of services. It has also stepped further into political domains closer to the core of member state sovereignty with the Charter of Fundamental Rights, now enshrined in the treaties, and the establishment of a concept of European citizenship, dating back to the Treaty of Maastricht, but given additional substance by a number of key rulings of the CJEU during the 2010s. However, at the same time, the introduction and implementation of new competences has gone hand in hand with greater differentiation (in particular for the Eurozone, as discussed below) and systematic use of opt-outs (Leuffen et al 2021). This applies to the arrangements for the removal of internal frontiers (Schengen), for the UK and Ireland, and to various other aspects of justice and home affairs for the UK, Ireland and – in its own way – Denmark. In

The European Union and global constitutionalism  499 addition, enlargement has led to enhanced differentiation, so that some states cannot yet, for example, join Schengen, even though they may wish to do so (Bulgaria, Romania and Croatia). Things have not always gone smoothly for the EU. The Eurozone was established on 1 January 1999, and now comprises 19 of the 27 member states. Yet it is widely accepted that (1) the Eurozone was not established with an appropriate framework to enable it effectively to withstand asymmetric shocks or serious sovereign debt crises facing one or more member states, and (2) shortcuts were taken with the original entry criteria, as a result of which several states, most notably but not only Greece, entered the Eurozone under conditions in which their public finances were not in sufficiently robust order to resist the type of crisis that occurred from 2008 onwards. These asymmetries could be said to represent the EU’s true ‘crisis’ (Kumm 2013). Consequently, there have been further treaty developments in this domain, to cope with the problems that have arisen, but none of them have involved all of the member states. These include the Treaty Establishing the European Stability Mechanism (ESM), among the 19 Eurozone members, which has been set up as a permanent source of financial assistance for those members which experience difficulties. Another separate intergovernmental mechanism, which includes some but not all of the non-Eurozone EU member states (the UK, the Czech Republic and Croatia did not participate), is the European Fiscal Compact Treaty, intended to operate as a more effective version of the stability and growth pact which fosters fiscal self-discipline among the Eurozone members and those other EU member states that have chosen to opt in. Such treaties, which bind only those states that participate, do not amend the existing treaty structure, but they necessarily cast a shadow upon the wider treaty framework in terms of their clear preference to defend the integrity of the euro as a currency in a robust manner. Indeed, the choice of treaty (as opposed to legislative) mechanisms operates as an important signal of the seriousness with which the contracting states regard such matters. Further pressure on the EU’s policy processes, and thus its commitment to operating within a legal framing, has also been evident during the course of the COVID-19 crisis, which posed a huge challenge to the EU institutions to step up to the plate with recovery packages that leveraged the EU’s scale and power on financial markets in a manner that would increase solidarities across the member states in the wake of the financial hits to economies caused by so-called ‘lockdowns’. However, such emergency politics always put institutional relations and, potentially, constitutional principles at both the EU and the member state levels under strain (Schmidt 2021; Goetz and Martinsen 2021).

SO WHERE DO WE NOW STAND WITH THE EU AND (GLOBAL) CONSTITUTIONALISM? It is clear that the early part of the 2000s saw an optimism that the EU was moving into a new ‘constitutional’ era, supported not only by the abundant scholarly writing exploring the applicability of constitutional ideas and practices in the context of the EU, but also by the willingness of political elites to invoke the ‘c’ word. This came during what we can call the ‘future of the Union’ period. This is the rather brief interregnum between the Laeken Declaration of 2000 and the referendums in France and the Netherlands in 2005, which saw rejection of the Constitutional Treaty. What underpinned this constitutional high water mark was a widely held elite commitment to the principle that, notwithstanding the concerns raised by the Danish referendum on the Treaty of Maastricht and the Irish electorate on the Treaty of Nice, and the

500  Handbook on global constitutionalism wariness of national judicial actors including the German Federal Constitutional Court, the progress towards a more highly institutionalised EU taking on an ever larger range of political, societal and economic challenge was the correct path to follow. This phase seems to be marked by a touching faith in the power of institutions to institute not just a formal but also a substantive sense of the EU as a constitutional project. However, the 2005 referendums represented an important turning point, signalling that citizens across more than one member state were no longer heavily invested in the notion that the EU should adopt an expressly constitutional form and raising some doubts about the very future of the European integration project, which have been amplified since that time. Since 2007, life has not become simpler for those seeking to argue that the European integration process – in its current form – represents an important ‘constitutionalised’ supplement to the liberal democratic constitutional frameworks of the member states. The challenges facing the EU have multiplied in scope and character. They stem from both internal and external sources. We have seen a substantial retrenchment towards ‘the national’ and the rejection of supranational solutions in many areas. This has occurred even though it continues to be widely acknowledged in political spheres that these same challenges require at least in part solutions extending beyond national borders. In almost all cases, the EU member states have struggled to find common solutions and to place these within effective rule-bound frames at the EU level. Thus we have seen the global financial crisis that spiralled into a sovereign debt crisis, and the associated global economic slowdown. We have seen the rise of Russia as a regional power, exercising destabilising power in the EU’s near neighbours, especially in Ukraine, culminating in a full-scale invasion in February 2022. War in Ukraine has spillover consequences for many EU member states because of the interface with North Atlantic Treaty Organization (NATO) guarantees on territorial integrity. These events have generated additional demands in the area of defence upon the EU. The wars in Ukraine, Syria and Yemen, along with the continuing fallout from US-led military actions in Iraq, Afghanistan and Libya, have all contributed to exacerbating the long-standing global crisis of refugees and displaced persons, most of the burden of which (with the exception of refugees from Ukraine) falls on third countries such as Lebanon, Turkey and other countries in the EU’s near neighbourhood. This crisis moved, in the last decade, across the external frontiers of the member states and into the heart of the EU, with the resulting large-scale population movements appearing at first sight to challenge the sustainability of frontier-free travel and mobility. Another security challenge has emerged as a result of a larger number of terrorist attacks within the member states, some of them involving people of migrant background, but often involving those who are citizens of the country in which the attacks have taken place. This is one reason why those who are dual citizens and those who are of Islamic faith have increasingly been seen as suspect in many member states. Close to home, there are other types of internal challenge: the rise of populist and often far right anti-immigrant politicians in a number of member states, able to exercise considerable power through coalition agreements accommodating anti-immigrant political preferences and the challenges posed to constitutional orders, democracy, the rule of law and the authority of the EU by the anti-liberal governments in Poland and Hungary. There remain, too, other long-standing challenges, such as the general lack of vitality in the economies of many of the member states (often giving rise to high levels of (especially youth) unemployment) and the problems of climate change and global warming that demand a global response.

The European Union and global constitutionalism  501 These challenges can and have demanded responses, which draw upon the institutional capacities of the EU to imagine and deliver shared action. With the withdrawal of the UK, a new impetus to shared action and even possible future treaty change emerged in the member states, with new visions emerging from the European Commission (European Commission 2017) and a Conference on the Future of Europe launched in 2021 with significant citizens’ deliberation elements built into it (Alemanno 2020). While the overt ‘Big C’ constitutional language has largely disappeared from the EU lexicon, the task for observers and interpreters of what the EU now does, and how it does it, has been to readjust their lenses in order to make sense of what might be termed a new phase of constitutional dissembling. Just because the language of formal constitutionalism has been rejected at the EU level does not mean that it does not make sense still to use lenses of constitutionalism – in relation to the rule of law, the balance of competences and the notion of constituent power, as postulated in the introduction to this volume. That is, is ‘Small c’ constitutionalism, as witnessed since the 1960s, still operating in the context of the EU? I would argue that this question is to be answered in the affirmative, with some qualifications related to the new conditions in which the CJEU now finds itself and also given the challenging geopolitical context in which the EU finds itself operating. What has been noticeable about recent developments in many of the contested policy arenas noted above is that so far as there has been EU action it has tended to be dominated by executive branches of the member states, operating in concert in the Council of Ministers and the European Council (Dawson and de Witte 2016). Parliaments at all levels (regional, national and European) have often been bypassed during the urgent search for monetary stability in the wake of the financial crisis, in responses to the humanitarian crisis produced by an influx of refugees and in COVID-19 responses that have strengthened executives across the world. Especially in the context of actions taken in relation to challenges to the viability of the Eurozone, the EU institutions have often acted in concert with other intergovernmental actors such as the International Monetary Fund or the so-called Troika, that lack democratic legitimacy. Some termed this a ‘turn’ towards a ‘new intergovernmentalism’, which has challenged many of the orthodoxies of scholarship on European integration, in particular that the institutions are ‘hardwired’ to pursue an ‘ever closer union’ (Bickerton et al 2015a, 2015b). In that context, as Cardwell and Hervey have argued, the use of law has often offered a formal and sometimes problematic veneer of legitimacy to many of the steps taken at the international level, which have challenged democratic choices made by electorates at the national level (for example, through the replacement of democratically elected governments with governments of technocrats, as in Italy) (Cardwell and Hervey 2015). Yet despite this there has been relatively little change in the way that the CJEU goes about its business. Its case law demonstrates that it remains concerned about protecting the systemic coherence of EU law as a system. This is evident, for example, in the Opinion which it gave on the draft international agreement providing for the accession of the EU to the European Convention on Human Rights, which it argued – notwithstanding there being a specific competence in the treaties to effect just this legal outcome – was not compatible with the scope and competences conferred by the treaties in their present form. The point is made very clearly in the judgment:6 ‘The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly



6

Opinion 2/13 Draft ECHR Agreement ECLI:EU:C:2014:2454, para. 158.

502  Handbook on global constitutionalism sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR.’ These systemic concerns are also visible in the Wightman case. In similar terms, the CJEU struck down an EU regulation transposing a UN Security Council sanctions resolution imposing an asset freeze on an individual suspected of connections with the financing of terrorist activities, on the grounds that it was not compatible with the human rights standards applicable within the EU.7 As in the Opinion on accession to the ECHR, the CJEU resisted the importation of external elements into the EU legal order. In the face of a much more extensive treaty framework than in the early years, it is harder to find grounds to accuse the CJEU of the greedy accretion of new competences in the name of ‘ever closer Union’. As noted previously, it rarely invokes that mantra, although it did so in a case called Pupino, during the interregnum between the creation of the so-called third pillar for justice and home affairs competences and the full-scale ‘mainstreaming’ of these competences into the core of the treaties through the Treaty of Amsterdam and the Treaty of Lisbon.8 Moreover, in Pupino, the CJEU tendentiously suggested that such ‘third pillar law’ had more in common with classic ‘European Community law’ than perhaps the framers of the so-called pillar structure had originally intended, but anticipating the political movement towards the ‘mainstreaming’ of these competences that came into force somewhat later. The CJEU also had to consider what to make of measures taken by the Union, and specifically by the European Central Bank (ECB), to deal with circumstances in the wake of the international financial crisis that threatened the very stability and existence of the Eurozone. It had to decide two controversial cases referred by the highest courts of two member states under Article 267 TFEU. In the Pringle case,9 the CJEU confirmed the competence of the EU to conclude the ESM Treaty, and in the Gauweiler case, the first ever reference made by the German Federal Constitutional Court, the CJEU confirmed the legality of so-called ‘Outright Monetary Transactions’ (OMTs), a form of defence for the euro devised by the ECB, but never actually used.10 Notably, in Gauweiler, before making the reference the German Federal Constitutional Court had expressed the view (by a majority) that the OMTs fell outside the competences of the EU (Fabbrini 2015, 2016). Yet when the case returned to the national court for a final ruling, it was able to avoid an outright conflict with the CJEU by repeating – in abstract terms – its strictures about its competence to scrutinise ultra vires EU-level measures which impinge upon German constitutional integrity, while holding off from taking any practical measures because the scope and character of the OMT instrument as interpreted by the CJEU did not manifestly exceed the competences of the EU. The national court also stated that any future hypothetical use of the OMT instrument would be under its supervision. None of this is intended to suggest that the fundamental economic and political issues which are raised by the crisis, which remain embedded within Europe’s monetary system, have been solved, but at least the immediate prospect of constitutional conflict was then headed off.

7 Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities ECLI:EU:C:2008:461. 8 Case C-105/03 Pupino ECLI:EU:C:2005:386. 9 Case C-370/12 Pringle ECLI:EU:C:2012:756. 10 Case C-62/14 Gauweiler ECLI:EU:C:2015:400.

The European Union and global constitutionalism  503 The issue re-emerged in spectacular manner in 2020, with a judgment of the German Federal Constitutional Court declaring that a judgment of the CJEU on the legality of decisions of the ECB11 did not have legal effect in Germany because it lacked the ‘minimum of democratic legitimation’ necessary under the Basic Law.12 The explicit challenge to the primacy of EU law in Germany may well have been one of the factors that motivated the President of the CJEU to put pen to paper and provide a ‘blogging’ response on the webpage of one of the leading German open access blogs, in a symposium on ‘German legal hegemony’ (Lenaerts 2020). It also provoked the European Commission to open an infringement procedure for breach of EU law against Germany, cognisant doubtless of the similarities between the defensive nationalist posture of the German Federal Constitutional Court and judicial approaches to EU law in Poland and Hungary which have attracted widespread criticism as well as calls for those governments to ensure that judicial independence is respected. This unprecedented infringement procedure against a founding member state was, however, quietly closed six months later, after the European Commission received political assurances from the German government that the country remains committed to the primacy of EU law and that it, the government, would do all in its power to avoid a recurrence of this type of ‘ultra vires’ finding by the highest court.13 The incongruent sight of one member state being asked to provide assurances about upholding the rule of law by hinting at political interference in judicial independence (what is publicly known is that the German Federal Constitutional Court acquired a new president, who is said to be more in tune with the government’s preferences) while others are admonished for political interference has not been lost on some commentators (Streeck 2022). Meanwhile, like the national constitutional courts which have been increasingly invoking national constitutional identity as a shield against unwanted intrusions, the CJEU itself has experienced an ‘identitarian’ turn. It referred in two judgments14 rejecting annulment actions brought by Hungary and Poland, which challenged the conditionality mechanism which makes the receipt of financing from the Union budget subject to the respect by the member states for the principles of the rule of law, to the values contained in Article 2 TEU. These constitute, it said, the ‘very identity of the European Union as a common legal order’. Finally, in this short review of the status quo of constitutionalism in the EU, we should turn briefly to some new challenges in the arenas of citizenship and fundamental rights. We might reasonably expect the concept of ‘citizenship’, as political membership, to have a core role to play within any constitutional system. For example, one of the primary incidents of ‘European citizenship’ is the right to vote in EP elections. Yet participation in these elections continued to decline with each new election, until that decline was arrested (but not reversed) in 2014 in many member states and finally started to rise again in 2019. What sort of ‘citizenship’ is there if citizens do not really participate? In the judicial sphere, the CJEU was faced in Delvigne with the question whether a French restriction on the right of prisoners to vote in EP elections fell within the scope of EU law. Answering in the affirmative, it provided a rather narrow interpretation of ‘citizenship’ for the purposes of EU law, invoking the universal

Case C-493/17 Weiss EU:C:2018:1000. BVferG, Judgment of 5 May 2020, 2 BvR 859/15, 1651/15, 2006/15, 980/16. 13 European Commission, December infringements package: key decisions, 2 December 2021, https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​inf​_21​_6201. 14 Cases C-156/21 and C-157/21 Hungary and Poland v Parliament and Council ECLI:EU:C:2022:97 and ECLI:EU:C:2022:98 (see paras 127 and 145 of the two judgments). 11 12

504  Handbook on global constitutionalism suffrage provisions of the treaties and of the Charter of Rights, but insisting that these have a narrow application within, and only within the scope of EU competences, that is, in the case of EP elections alone.15 Such a case does not open the gates to establishing a more ‘federal’ and autonomous type of European citizenship. Citizenship in the EU is dependent both on the scope of EU competences and upon the underpinning role of national citizenship: only citizens of the member states are EU citizens. More generally, the CJEU has shown a fondness for burnishing the democratic credentials of the EU. In a small number of recent cases, it has made reference to the ‘democracy’ part of Article 2 TEU, which states the ‘values’ of the EU. In these cases, it has reached for the following formula which links together the more general and more specific references to democracy in the EU treaties: it must be recalled that, as stated in Article 10(1) TEU, the functioning of the Union is to be based on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the Union is founded.16

It has done this in various contexts: in relation to the extent of the immunity of European parliamentarians (representative democracy); in relation to the scope of the duties of the European Commission in responding to European Citizens’ Initiatives (direct democracy); in relation to appropriate means for implementing EU law within the member states (the balance between representative democracy and technocracy). As with the rule of law/conditionality case discussed previously, it seems that the CJEU is gradually moving towards a ‘thicker’ concept of EU constitutionalism. While this seems a reasonable response, it may not be a sufficient one. All is not well in Europe’s legal landscape. Some threats are just too powerful to be faced down with the power of liberal legalism.

CONCLUSION The liberal ‘legalised’ form of constitutionalism, which has served the EU so well for more than 40 years, has often seemed under threat in recent years and as we have seen in this chapter it does not always sit easily with the political concept of European integration. It may not even survive the backlash of populist politics, which rely on the gatekeeping power of a concept of the ‘national people’, if these take hold electorally in the EU member states. It is no longer about the ‘Big C’ or the ‘Small c’, but about survival altogether. For nearly a decade, EU constitutionalism has been standing at a crossroads. While some existential challenges such as Brexit have been seen off, and the autonomy of the EU legal order duly protected from contamination, the challenges of enlargement remain and have become more complex with the war in Ukraine. While the COVID-19 era has largely seen populist politicians repulsed at the ballot box, 2022 has already seen the decisive re-election of Hungary’s populist and right-wing Prime Minister Victor Orbán, who explicitly stands against the liberal legalism and cosmopol-

C-650/13 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde ECLI:EU:C:2015:648. See Case C-502/19 Junqueras ECLI:EU:C:2019:1115 (para. 63), Case C-418/18 P Puppinck ECLI:EU:C:2019:1113 (para. 64) and Case C-718/18 Commission v Germany ECLI:EU:C:2021:662 (para. 124). 15 16

The European Union and global constitutionalism  505 itanism for which he says the EU stands. He turns constitutionalism on its head, using tropes of liberal constitutionalism such as tolerance of difference into a demand that Hungary should be allowed to pursue its distinctive non-liberal path (Eisler et al 2022). All of this suggests that the era of ‘postnationalism’, if it ever began, is now over for the EU. However, as long as these are risks not realities, it is worth observing that the old ‘order’ has largely survived the challenges posed by the financial crisis and austerity measures relatively unscathed, as the previous paragraphs have shown. On the whole the EU has benefited from what Grimm (2015) has called ‘overconstitutionalisation’ – namely, the rendering into primary law (and thus the buttressing of a high level of unamendability) of many elements of socio-economic choice that in most national systems are the subject of ordinary politics, not constitutional politics. This has created a degree of stability, at the same time as opening the EU to the charge that it is not capable of reacting effectively to changed external or internal circumstances. One example of this phenomenon, in the view of some, is the rigidity of the EU’s commitment to the free movement of persons as a central pillar of the single market. Yet what other approach is feasible for a legal edifice constructed on a framework of economic integration and a justiciable principle of non-discrimination? Even if the EU were to do what some have counselled, which is to revert to the pre-Maastricht ‘state of innocence’, in practice this would not change this particular dilemma, in which free movement of persons has come to be seen as one of the problems that the EU causes, as well as being one of its most valued contributions to the lives of its citizens. Returning to the elements of constitutionalism identified in the introduction, it is clear that internally the EU has been strongest in relation to the defence of the rule of law, and less capable of articulating a sophisticated defence of a model of constitutionalism based on the separation of powers or an effective notion of a constituent power. Yet that too is under threat, with defiance of the EU rule of law now rife in a number of parts of the EU and the EU’s sanctioning capacity is limited (Closa 2021; Closa and Kochenov 2016; Pech 2021). We see a resurgence of nationalist authoritarianism threatening constitutionalism in various parts of central and Eastern Europe. It is also worth pointing to the populist discourse in some member states suggests that supranational courts are part of the problem. From the perspective of national citizens, the rulings of such courts tend to undermine the legitimacy of European integration, rather than simply offering an independent adjudicator of conflicts between states. This was arguably the happy role that the CJEU was able to claim in the early years. The same phenomenon can be seen also in the opposition – in Wallonia but also elsewhere in the EU – to the inclusion of various forms of supranational judicial decision-making in the external agreements that the EU is seeking to make with third countries, such as the Comprehensive Economic and Trade Agreement between Canada and the EU, in order to protect the interests of investors and traders. The legitimacy of such tribunals is in question. Yet at the same time, events in the external sphere that threaten potentially the territorial integrity of the member states have offered an occasion for a reset of many of these issues. The challenge posed by the war in Ukraine, across parameters of security threat, accommodation of displaced persons and refugees and economic upheaval because of the need to ‘sanction’ the Russian economy and those who push its interests in the west, offered an opportunity for the EU to recover its sense of purpose. Relations between Poland and Brussels, for example, seem much improved and this may spill over also into the arena of the rule of law conflict ongoing between the two capitals.

506  Handbook on global constitutionalism The original objectives of the so-called ‘founding fathers’ of European integration concerned the promotion of peace, prosperity and a form of non-nationalist supranationalism. In many respects, the EU has been remarkably successful, given the history of the European continent right through to the middle of the twentieth century. The ‘constitutionalised treaties’, along with the judges, have been at the heart of that success, but in the era of national reactions against neo-liberalism and globalisation, the role of the EU and specifically of the CJEU is increasingly under question. It appears that the conviction that law represents an effective mechanism for buttressing the external commitments of states is waning. It would seem fair to suggest that if the EU is to feature in a future handbook on constitutionalism beyond the state or global constitutionalism in 20 years’ time, then a degree of reinvention and reconsideration will be required.

REFERENCES Alemanno, A. (2020), ‘Unboxing the Conference on the Future of Europe and its democratic raison d’être’, European Law Journal, 26 (5–6): 484–508. Alter, K.J (1996), ‘The European Court’s political power’, West European Politics, 19 (3), 458–87. Bickerton, C.J., D. Hodson and U. Puetter (eds) (2015a), The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era, Oxford: Oxford University Press. Bickerton, C.J., D. Hodson and U. Puetter (2015b), ‘The new intergovernmentalism: European integration in the post-Maastricht era’, Journal of Common Market Studies, 53 (4), 703–22. Cardwell, P. and T. Hervey (2015), ‘The roles of law in a new intergovernmentalist European Union’, in C.J. Bickerton, D. Hodson and U. Puetter (eds), The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era, Oxford: Oxford University Press, pp. 73–89. Closa, C. (2021), ‘Institutional logics and the EU’s limited sanctioning capacity under Article 7 TEU’, International Political Science Review, 42 (4), 501–15. Closa, C. and D. Kochenov (eds) (2016), Reinforcing Rule of Law Oversight in the European Union, Cambridge: Cambridge University Press. Dawson, M. and F. de Witte (2016), ‘From balance to conflict: A new constitution for the EU’, European Law Journal, 22 (2), 204–24. De Witte, B. (2021), ‘Direct effect, primacy and the nature of the legal order’, in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford: Oxford University Press, 3rd edition, pp. 187–227. Eisler, J. et al (2022), ‘The pendulum swings back: New authoritarian threats to liberal democratic constitutionalism’, Global Constitutionalism, 11 (1), 1–8. European Commission (2017), Reflections and scenarios for the EU27 by 2025, White Paper on the Future of Europe, COM(2017) 2025 final, 1 March 2017. Fabbrini, F. (2015), ‘After the OMT case: The supremacy of EU law as the guarantee of the equality of the member states’, German Law Journal, 16 (4), 1005–24. Fabbrini, F. (2016), ‘The European Court of Justice, the European Central Bank, and the supremacy of EU law’, Maastricht Journal of European and Comparative Law, 23 (1), 3–16. Garrett, G. (1995) ‘The politics of legal integration in the European Union’, International Organization, 49 (1), 171–81. Goetz, K. and D. Sindbjerg Martinsen (2021), ‘COVID-19: A dual challenge to European liberal democracy’, West European Politics, 44 (5–6), 1003–24. Grimm, D. (2015), ‘Types of constitutions’, in M. Rosenfeld and A. Sajo (eds), The Oxford Handbook on Comparative Constitutional Law, Oxford: Oxford University Press, pp. 98–132. Kumm, M. (2013), ‘What kind of a constitutional crisis is Europe in and what should be done about it?’, WZB Rule of Law Centre Discussion Paper SP IV 2013–801, Social Science Research Centre, Berlin. Laffan, B. (2019) ‘How the EU27 Came to Be’, Journal of Common Market Studies, 57 Annual Review 13–27.

The European Union and global constitutionalism  507 Lenaerts, K (2020) ‘No Member State is More Equal than Others: The Primacy of EU law and the Principle of the Equality of the Member States before the Treaties’, VerfBlog, 2020/10/08, https://​ verfassungsblog​.de/​no​-member​-state​-is​-more​-equal​-than​-others/​, DOI:  10.17176/20201008-1133230. Leuffen, D., B. Rittberger and F. Schimmelfennig (2021), Integration and Differentiation in the European Union: Theory and Policies. Cham: Springer International Publishing. Müller, J.W. (2016), What is Populism?, Philadelphia, PA: University of Pennsylvania Press. Nic Shuibhne, N. (2021), ‘Did Brexit Change EU Law?’, Current Legal Problems, 74 (1), 195–234 Pech, L. (2021), ‘The rule of law’, in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford: Oxford University Press, 3rd edition, pp. 307–38. Pernice, I. (2014), ‘A difficult partnership between courts: The first preliminary reference by the German Federal Constitutional Court to the CJEU’, Maastricht Journal of European and Comparative Law, 21 (1), 3–13. Schmidt, V. (2021), ‘European emergency politics and the question of legitimacy’, Journal of European Public Policy, DOI: 10.1080/13501763.2021.1916061. Streeck, W. (2022), ‘Ultra Vires’, New Left Review Blog: Sidecar, 7 January, https://​newleftreview​.org/​ sidecar/​posts/​ultra​-vires. Tridimas, T. (2015), ‘The ECJ and national courts: dialogue, cooperation and instability’, in A. Arnull and D. Chalmers (eds), The Oxford Handbook on European Law, Oxford: Oxford University Press, pp. 403–30.

35. The International Criminal Court and global constitutionalism Andrea Birdsall and Anthony F. Lang, Jr.1

INTRODUCTION How does the International Criminal Court (ICC, hereafter the Court) embody the principles of constitutionalism? We look to the internal structure and practice of the Court to explore this question. We propose two types of constitutionalism in this chapter: international constitutionalism which describes a legal and political order in which states are the primary agents and global constitutionalism in which individual people are the primary agents. The Court embodies both aspects of constitutionalism. In its focus on individuals and their rights (both victims and accused) it reflects a global constitutional order, one in which the individual agent is protected. Yet the fact that it is governed by the Assembly of State Parties (ASP) reflects the idea of international constitutionalism. While this Handbook is focused primarily on the former element of constitutionalism, we argue here that a combination of the two types of constitutionalism better describes and helps us to evaluate the practices of the Court. The chapter proceeds as follows. The next section briefly explains the two types of constitutionalism that anchor our analysis of the Court. The third section uses the idea of global constitutionalism to describe and evaluate the practice of the Court in its first case, which established many of its procedures and practices and which relate to the rule of law and the advancement of human rights. In prosecuting cases, the Court focuses on individual persons as constituent members of the global order. The subsequent section uses the idea of international constitutionalism to describe and evaluate the work of the ASP, which links the Court to states as the constitutive members of international society.2

CONSTITUTIONALISM AND THE ICC As described in the introduction to this Handbook (Chapter 1), constitutionalism sits at the intersection of law, politics and ethics. It has two underlying principles: (1) political power is used by people through law and institutions; and (2) institutions and political leaders are limited by the law. Constitutionalism both enables the creation of institutions and laws and limits those who lead those institutions and execute those laws. Constitutionalism in the modern world implies the existence of a written constitution, though not all c­ onstitutional states have such a text (the United Kingdom being one prominent example). Constitutionalism

A revised version of this chapter also appears in Mills and Labonte (2018). Another aspect of the Court that links it to an international constitutional order is its relation­ship with the United Nations Security Council. We explore this relationship in a different iteration of this project. 1 2

508

The International Criminal Court and global constitutionalism  509 achieves its enabling and limiting functions through four devices: the rule of law, separation of powers, constituent powers and provision of rights. The Court is constitutional precisely because it sits at this intersection of politics and law. As Carsten Stahn notes: [A] strict separation between legal and political space is partly misleading. Political choice and engagement with politics are an inherent and legitimate part of situation- and case-related analysis, such as selection strategy, assessment of context, arrest, charging policy, or security assessments. Reliance on legal formalism is not always the best strategy to demonstrate judicial or prosecutorial independence. (Stahn 2015, p. lxxxix)

Constitutionalism is a philosophical standard that can help to better describe this space between the political and legal. As will become clear in the following descriptions of both the internal and external functions of the Court, we find that describing its activities in constitutional terms gives us a better understanding of what it is doing and what it can do in the future to achieve justice. We propose two forms of constitutionalism that exist beyond the nation-state context, the international and the global. International constitutionalism rests upon the idea that states are the primary agents in the political order, while global constitutionalism rests upon the idea that persons are the primary agents in the international order. This distinction is not a hard and fast one, and what is interesting is the ways in which arguments for international constitutionalism often lead to a focus on how such structures are becoming more global in orientation. So, for instance, Bardo Fassbender has been a leading proponent of the view that the global constitutional order is to be found in the United Nations (UN) Charter (Fassbender 2009). The text is ambiguous when it comes to differentiating international and global constitutionalism; as just one example, the opening phrase of the preamble, ‘We the Peoples of the United Nations’,3 highlights individual persons and the states of which they are a part. Throughout the text, both state interests and human rights are reflected. In another example, some have looked to the increasing constitutionalisation of international law (Klabbers et al. 2009). This approach to constitutionalism gives primacy to states, though it suggests that there is a slow process by which states as the primary agents in the international order may be losing influence in relation to institutions and peoples as active drivers of political life. For instance, in institutions such as the World Trade Organization (WTO) and United Nations Human Rights Council (UNHRC), states constitute the primary agents but the role played by other agents (companies, non-governmental organisations, experts) moves power and law-making outside the province of states alone. These developments do not imply that there will suddenly be a fully-fledged global constitutional convention and a resulting written global constitution; rather, they suggest that various developments at different levels of the global order indicate important changes in that global political and legal order. The ICC also has this dual constitutional nature. Seeing the Court as part of a global constitutional order means evaluating it as a constitutional entity in terms of advancing the rule of law and protecting the rights of individuals. Moreover, the interactions of the Prosecutor with the Trial Chambers reflects a kind of separation of powers, which works towards fairness and justice for victims as well as accused persons by ensuring no single entity has control



3

Preamble of the UN Charter, at http://​www​.un​.org/​en/​sections/​un​-charter/​preamble/​.

510  Handbook on global constitutionalism over the process. These dimensions of the Court privilege the individual over the interests of states. Indeed, the efforts to prosecute the heads of state of Sudan and Kenya demonstrate how such individuals cannot be protected by state sovereignty but rather are considered individuals before a global court system. However, the Court is also part of a wider international order. It was created by states and is the result of a treaty, the primary instrument by which states construct international law. Moreover, the ASP is the ultimate governing body of the Court (O’Donahue 2015). The Court can be located at the intersection of international and global constitutionalism. In order to tease out how these two kinds of constitutionalism interact, we demonstrate that the Court is an embodiment of constitutionalism, but that the admixture of the two kinds of constitutionalism can sometimes limit the ability of the Court to bring justice to victims of international crimes. Rather than propose that the Court should be severed from its international constitutional framing, we propose that more clarity on how the global and international interact can reveal spaces in which the Court can move towards greater protection of rights and the advancement of justice in the global order.

GLOBAL CONSTITUTIONALISM AND THE ICC The ICC came into being on 1 July 2002; it has 124 states parties (that is, members) and commits itself to serve ‘the highest standards of fairness and due process’.4 The Office of the Prosecutor (OTP) is charged with investigating and prosecuting possible crimes within the ICC’s jurisdiction. It receives referrals and substantiated information, and has to decide on questions of jurisdiction and admissibility and, ultimately, whether or not to open an investigation into a particular situation. In terms of the above-mentioned first element of constitutionalism, the Prosecutor has powers to act independently and impartially to protect the rule of law. The statute has clear criteria for establishing admissibility (such as Article 17 that sets out the principle of complementarity) but even though decisions on judicial intervention, that is, on whether or not to open investigations into particular situations, are always political this political process is law-governed. It is constrained by legal principles (such as requirements of gravity) that are clearly stipulated in the Rome Statute. Such guidelines and rules exist within the statute to ensure a fair and representative process as much as possible. This focus on representativeness and fairness can also be seen in the ICC’s institutional set-up, such as the composition of the Judicial Divisions that consist of 18 judges from diverse geographical regions as well as different legal systems that have been selected according to competence, experience and integrity. Ensuring such equitable representation enhances the ICC’s perceived legitimacy as an international court that is not dominated by one particular way of administering justice.5 As argued above, the separation of powers is the second crucial aspect of global constitutionalism. By both limiting the power of one particular actor within the system while at the same time enabling power, that power is channelled towards productive and useful ends. This separation is also reflected in the institutional set-up of the ICC: the Prosecutor needs to work See the International Criminal Court website for more details on the institution: www​.icc​-cpi​.int/​. Article 36(8): ‘The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges.’ 4 5

The International Criminal Court and global constitutionalism  511 with states parties in order to gather relevant information and evidence about possible ICC crimes. Before formally opening an investigation, the OTP then needs to apply to the Pre-trial Chamber to establish admissibility. This process ensures that information is evaluated by different actors; the Prosecutor cannot act completely independently but is part of a law-governed structure that ensures procedural fairness. The protection of rights is the third central constitutional element within the Rome Statute. In line with Article 53, the Prosecutor can desist from opening an investigation if it is not ‘in the interest of justice’.6 Finally, once proceedings have started, the Trial Chambers are tasked with protecting the rights of the defence victims and witnesses in equal measure by following due process. Some of these different roles and responsibilities that are institutionalised in the Rome Statute conflict at times and the challenge lies in finding ways to ensure the ICC retains its legitimacy. In consideration of these criteria, the ICC’s first ever completed trial, that of Thomas Lubanga Dyilo of the Democratic Republic of Congo (DRC), is an instructive case as a number of its elements, such as respect for the rule of law, the strict separation of powers and the protection of rights of the people directly affected by the trial (that is, the accused as well as the victims) are all discernible in the disputes prior to the start of the proceedings. The main disagreement lay in two, seemingly conflicting provisions within the statute that both relate to the OTP’s responsibilities: Article 54(3)(e) that sets out that the Prosecutor may not disclose information obtained on the condition of confidentiality and solely for the purpose of generating new evidence; and Article 67(2) that states that the Prosecutor is obliged to disclose evidence which might show the innocence of the accused or mitigate their guilt. Lubanga’s was a relatively small case but a first for the ICC in many respects which made it so important for the Court to demonstrate how it discharged its judicial functions and overcame tensions within its own statute without compromising the overriding aim of justice. As others have rightly argued: [T]he creation and efficient functioning of a new institution must begin somewhere. A fair trial of Thomas Lubanga is an essential step in attaining an effective and legitimate ICC. ... If victims of war crimes do not feel as if the Tribunal is working in the interest of justice, the Tribunal cannot attain legitimacy. (Anoushirvani 2010, 235–6; see also Ambos 2009)

On 23 June 2004, the OTP opened its first investigation by looking into grave crimes allegedly committed in the territory of the DRC since 1 July 2002 (the date the Rome Statute entered into force). The DRC became a state party of the ICC on 11 April 2002 and referred the situation to the OTP in April 2004. On 17 March 2006 Thomas Lubanga Dyilo, founder and leader of the Union des Patriotes Congolais (UPC) and the commander-in-chief of its military wing, the Forces Patriotiques pour la Libération du Congo (FPLC) was arrested and surrendered to the Court. He was accused of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities in the DRC’s Ituri region from September 2002 to 13 August 2003. The crimes Lubanga was charged with are listed as war crimes under Article 8 of the Rome Statute. The proceedings were halted twice before the actual trial started in January

The Rome Statute gives little guidance, however, on what criteria the OTP should apply to determine what those ‘interests’ might constitute beyond the obligation to consider the gravity of the crime, the interests of victims and the role of the alleged perpetrator. 6

512  Handbook on global constitutionalism 2009. There was a clear tension between the OTP’s need to build a case and incentivise cooperation by ensuring confidentiality to its information providers on the one hand and the right of the accused to receive a fair trial by having access to any potentially exculpatory evidence on the other. On 13 June 2008, Trial Chamber I imposed a stay on the proceedings against Lubanga, arguing that the Prosecutor, Louis Moreno Ocampo, had misused the Rome Statute’s confidentiality provisions (Trial Chamber I 2008, para. 72). The OTP had received information from the UN and NGOs with agreement that the documents would not be disclosed. According to Article 54(3)(e) the OTP can enter into such confidentiality agreements to receive lead evidence, that is, information to generate new evidence that can then be used in trial. The OTP’s information providers were keen to sign up to such agreements because they were concerned about protecting their operations on the ground, shield their personnel from possible retaliation and also protect the security of their sources. Understandably, requirements of a fair trial for the accused were not of central importance to them (Kaoutzanis 2013, p. 277). The Trial Chamber was concerned, however, that the Prosecutor had misused this provision by not disclosing over 200 documents ‘which the prosecution accepts have potential exculpatory effect or which are material to defence preparation’ (ICC Press Release 2008a). The Trial Chamber argued that this would inhibit the accused from being able to prepare his defence and it also violated a ‘fundamental aspect of the accused’s right to a fair trial’ (ICC Press Release 2008a). The Trial Chamber was critical of the OTP’s approach and doubted that it would be able to ensure a fair trial. It found that ‘The prosecution’s approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended for the prosecution to receive evidence confidentially, and in very restricted circumstances’ (Trial Chamber I 2008, para. 73). Others, for instance Stuart (2008), agree that the OTP’s actions were not due to misperceptions related to provisions within the statute, but that ‘the habit of presenting evidence for disclosure and redaction in large amounts and at a late stage in the proceedings, . . . seems to point at prosecutorial mismanagement and disregard for fundamental rights of the accused, while at the same time excluding the Chamber from verifying the materials’ (Stuart 2008, p. 413). The Trial Chamber ordered the Prosecutor to disclose all potentially exculpatory information to ensure the accused’s right to fair trial. The Trial Chamber held that this was ‘without doubt a fundamental right’ (Trial Chamber I 2008, para. 77) that was already established in case law (for instance at the International Criminal Tribunal for the former Yugoslavia – ICTY – and the European Court of Human Rights). In its ruling, the Trial Chamber reinforced the institutionalised separation of powers, emphasising that it was not up to the Prosecutor to decide which materials should be made available to the accused. The Trial Chamber took the decision to halt the proceedings because ‘the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial’ (Trial Chamber I 2008, para. 93). The Trial Chamber made clear that even though its decision to halt proceedings deprived victims of their chance to get justice, it needed to balance the right to fair trial for the accused with giving victims the possibility to hold those responsible for serious crimes accountable for their actions. Both are constituents of the Court and arguably both have an interest in fair and just proceedings to ensure that the outcome of the trial is not tarnished by accusations of

The International Criminal Court and global constitutionalism  513 illegitimacy or irregularity. It is also important that the trial is perceived to be legitimate by the affected groups in order for them to feel that ‘justice’ has been achieved. On 23 June, the OTP appealed the Trial Chamber’s decision, refuting the claim that it had used confidentiality agreements inappropriately (Office of the Prosecutor 2008). Ocampo argued that especially the UN as one of the information providers had insisted on making information subject to confidentiality and that it was therefore not a matter of choice for him but one of legal obligation to not disclose information to the Trial Chamber. He claimed that he would not have received the information in the first place had he not agreed to confidentiality. On 21 October 2008, the ICC’s Appeals Chamber dismissed the OTP’s appeal to halt the proceedings. (ICC Press Release 2008b) It confirmed that the Prosecutor could only rely on confidentiality for the purpose of generating new evidence and must not lead to breaches of obligations towards the accused. The Appeals Chamber held that decisions on whether any particular evidence needed to be disclosed had to be made by the Judicial Divisions, not the OTP. By withholding information from the Trial Chamber, the OTP prevented the former from assessing whether a fair trial could be held. This also raised concerns that if the accused were unable to prepare for the trial, any verdict or conviction would potentially be unsafe because there would always be the question whether the undisclosed material would have made a difference to the outcome.7 This issue was eventually resolved when the information providers agreed to give complete access to all relevant undisclosed documents to both Judicial Divisions and the trial could begin. On 8 July 2010, however, Trial Chamber I ordered another stay of proceedings, arguing that a fair trial of the accused was ‘no longer possible due to non-implementation of the Chamber’s orders by the Prosecution . . . to confidentially disclose to the Defence the names and other necessary identifying information’ (ICC Press Release 2010) of one particular intermediary. The Trial Chamber again emphasised the necessity of the OTP to follow the right procedures in order to ensure the accused received a fair trial (Trial Chamber I 2010, para. 28). Even though the Trial Chamber argued that protective measures had been offered and agreed with the intermediary in question, the Prosecution claimed that it was the Court organ responsible for the protection of the witness and that it could therefore not disclose the requested information. There was again a tension between the OTP that emphasised its legal duties of having to protect a witness and the Trial Chamber that held that the Prosecution had to follow orders given by the ICC’s Judicial Division to ensure the separation of powers, the rule of law as well as the right to a fair trial. The decision to halt proceedings for a second time raised what the Chamber called a ‘more profound and enduring concern’, namely, that the Prosecutor, ‘by his refusal to implement the orders of the Chamber and the filings …, has revealed that he does not consider that he is bound to comply with judicial decisions that relate to a fundamental aspect of trial proceedings’ (Trial Chamber I 2010, para. 21) The Trial Chamber was concerned that the Prosecutor claimed to have autonomy with regard to whether or not to comply with Court orders depending on his interpretations of his responsibilities in accordance with the ICC Statute. The OTP relied on Article 68 that enables the OTP to ‘take appropriate measures to protect the safety,

This ruling is also in line with an earlier argument of the Appeals Chamber when it had decided that ‘a fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped’ (Appeals Chamber 2006, para. 37). 7

514  Handbook on global constitutionalism physical and psychological well-being, dignity and privacy of victims and witnesses’ during trial proceedings. The Trial Chamber argued, however, that: the prosecution’s obligations are subject to the Chamber’s overarching responsibility to ensure the accused receives a fair trial – ‘[t]hese measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.’ The latter decision is solely for the Chamber, and it is not for the prosecution to seek to determine for the purposes of this trial what constitutes fairness for an accused. (Trial Chamber I 2010, para. 24)

The Chamber argued that the statute provided that the judiciary was the organ ultimately responsible for protective measures once proceedings had started, and not the OTP. Such action has to be carried out consistently because, as the Trial Chamber rightly held, ‘No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations’ (Trial Chamber I 2010, para. 27). The Trial Chamber reminded the OTP of its place within the institutional structure of the ICC, arguing that Article 68 did not free the Prosecutor from his obligations to comply with Court orders. A clear focus on global constitutionalism’s rule of law, protection of rights and separation of powers became evident in this instance. Moreover, these principles are applied in a way that concerns individuals, both accused and victims, as the ultimate constituents of the Court. The Prosecutor was criticised for undermining the ICC’s institutionalised separation of power by claiming ‘a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary’ (Trial Chamber I 2010, para. 27). The Trial Chamber decided to stay the proceedings because the Prosecutor declined to have his powers ‘checked’ by the Trial Chamber which the latter saw as an abuse of the process that ultimately impinged upon the accused’s right to a fair trial. The stay of proceedings was eventually reversed and on 14 March 2012, after two years of trial proceedings, and six years after his arrest, Lubanga was convicted of committing, as co-perpetrator, war crimes related to the use of child soldiers. His sentence of 14 years’ imprisonment was confirmed by the Appeals Chamber on 1 December 2014. This review of the first case demonstrates that in terms of constitutional theory, the Court can advance justice, specifically in global constitutionalism terms and its focus on individuals. By ensuring that the accused was treated fairly and that the OTP could not ride roughshod over the rights of the accused, the Court ensured the protection of his rights. At the same time, the Court found him guilty following a measured court process that abided by rule-of-law principles, and so provided justice to the individuals who were subject to the violence that Lubanga undertook.

INTERNATIONAL CONSTITUTIONALISM AND THE ICC In this section, we look at the ICC through the second lens of international constitutionalism. More specifically, we explore here how the ICC is constituted by states and how states govern it. What makes this state-based dimension of the ICC constitutional can be found in the way power functions within and in relation to the ICC. The ASP is a constituent power which must continually ensure that the ICC stays true to its mandate and does not overstep its role in the pursuit of a narrow conception of justice or human rights.

The International Criminal Court and global constitutionalism  515 The Court is a treaty-based organisation and thus has legitimacy and authority on the basis of positive international law. Its origins in a negotiated treaty give it more legitimacy, perhaps, than the international criminal tribunals that were created by the UN Security Council through resolutions and thereby imposed on states. Its standing in the international legal order, in other words, is formally very strong. This formal strength is weakened on a practical level by the refusal of key great powers to join, including three of the P5 (Russia, China and the United States).8 This basis on state consent and a treaty structure reflects the Court’s position in an international constitutional order, which differs in important ways from the global constitutionalism reflected in its orientation towards the rights of individual victims and accused. So, in accordance with traditional international law and politics, the Court has a paradoxical status. It is, on the one hand, clearly established in the legal order but, on the other hand, subject to a lack of political legitimacy because of the failure of the most powerful agents in the system to fully accept its role. Rather than focusing on these formal legal and political categories, however, we propose a different way to see the status of the Court through the international constitutional model. Its formal legal legitimacy is manifest in the governance of the Court by the ASP. The ASP provides management oversight of the Court and serves as its only formal legislative body. It also passes the budget of the Court, elects the judges and the prosecutor. All states that have signed the Rome Statute have one person representing them in the ASP. It is run by a bureau composed of a President, two Vice Presidents and 18 members. In 2011, the ASP created a Secretariat which manages its affairs. This institution reflects the state-based and formal international legal structure of the Court, which we interpret through the idea of international constitutionalism. We might object that there is nothing constitutional about this arrangement; rather, this simply reflects a traditional international organisation. In accordance with the framework of constitutionalism described in the second section, this institution within the Court would need to advance the principles of the rule of law, separation of powers, constituent power, and/or human rights. We see the ASP as contributing to the first three of these dimensions of the Court, hence playing an important role in making the Court more constitutional. At the same time, the ASP has perhaps hindered the ability of the Court to advance human rights in some of its actions. So, using the standard of constitutionalism, we argue that there is a mixed record here. The first dimension to which the ASP contributes concerns the rule of law primarily through its legislative function. The Rome Statute is the primary legal instrument of the Court. But the ASP is tasked with continuing to develop the legal rules that govern the work of the Court. For instance, when the Rome Statute was passed, one crime it did not formally define was aggression, leaving this to the ASP to address. In June 2010, the ASP adopted a definition of

This political weakness has evolved to some extent, however, if one looks at the gradual acceptance of the Court by the United States. For instance, the government of George W. Bush, despite its initial hostility to the Court, abstained from voting on issuing an indictment against the President of Sudan in 2005 (that is, it did not veto the decision) and voted in favour of issuing indictments for the Libyan leader, Muammar Gaddafi, along with his son Saif Al-Islam Gaddafi and the chief of intelligence Abdullah Al-Senussi during the campaign against Libya in 2011. These actions provide tacit acknowledgment of the role that the Court can play in international legal and political efforts to protect human rights and advance international criminal law. (See Birdsall 2010 for a more detailed discussion of the US stance towards the ICC.) 8

516  Handbook on global constitutionalism aggression in its Thirteenth Plenary Session.9 No one has been accused or convicted of this crime as of yet, but by defining it through a formal legislative process, the ASP embodied the legislative function which a constitutional order demands (Waldron 1995). Moreover, the ASP has created a series of working groups within the bureau which are designed to advance important dimensions of the Court’s work, including the question of complementarity, cooperation of the Court with other agents in the international order, and questions arising from compensation to victims. These groups propose draft resolutions to the ASP which it can then take up and turn into new rules concerning the governance of the Court. Certainly, this legislative role is constrained by the fact that states are the members rather than elected individuals, but this element of the Court reveals how what we call international constitutionalism can be seen in the Court’s activities. The second aspect of international constitutionalism that can be found in the ASP is the separation of powers. As the oversight body of the Court, the ASP provides the Court its budget every year. As with a domestic legislature, this role gives the ASP the ability to counterbalance the power of the other aspects of the Court. Since the Court has come into existence, the ASP has approved 12 budgets, with the 2014 budget totalling €121.6 million. Demonstrating its power, the ASP has sought to limit some of the demands of the Prosecutor and Trial Chambers when it comes to requesting money for their work. For instance, the five highest contributing states – Japan, the UK, France, Germany and Italy – have called for zero nominal growth in the budget. As one commentator argued, ‘There is a real risk that some State Parties could seek to influence the ICC’s activities through the budget’ (O’Donahue 2015, p. 115). While this author is lamenting the ­influence that states might have on the Court’s activities, we might see this influence as a counterbalance to efforts by either the Prosecutor or the Trial Chambers to undertake investigations that have little merit. Moreover, as Bosco notes: [T]here is no evidence that states have attempted to use the budget process to directly or indirectly influence the investigative strategy of the court. Despite the concerns of the prosecutor, it also does not appear that the ASP oversight of court personnel has been used in an effort to influence court strategy or investigations. (Bosco 2014, p. 183)

The budget control exercised by the ASP might be a means to ensure that the Court undertakes its activities in the most efficient manner, hence improving the Court’s performance in the long run. This is not to deny that there is the potential that state parties acting through the ASP might well hinder legitimate activities of the Court, but only to recognise that the ASP serves an important counterbalancing role. The third principle of constitutionalism by which the ASP can be evaluated is constituent power. The ASP is the closest the Court has to any kind of constituent power, as it both represents the community that constituted the Court and has the ability to refashion it through legislative and regulatory actions. Because the ASP is composed of states and not individuals, its constituent power reflects international constitutionalism rather than global constitutionalism. For some, this might be seen as a weakness of the Court, for without the ability of individuals to play a role in how the Court operates, it does not embody a cosmopolitan purpose. However,

For details on the various documents which led to the passing of the definition and the definition itself, see the ICC website, at https://​asp​.icc​-cpi​.int/​en​_menus/​asp/​reviewconference/​Pages/​crime​%20of​ %20aggression​.aspx. 9

The International Criminal Court and global constitutionalism  517 we would argue that by having an international constituent power in the ASP, the Court does embody a kind of constitutionalism which, combined with the global constitutionalist elements described in the previous section does indeed make it more constitutional rather than less. The final dimension of constitutionalism is rights, and it is here that the ASP is perhaps less constitutional than other aspects of the Court. As noted in our introduction, some assume that rights are the primary dimension of constitutionalism, and the fact that the Court is defined as an institution designed to protect the rights of victims reinforces this perception. While we have argued that rights are not the only aspect of constitutionalism by which we are evaluating the Court, we also think it is an important part of constitutionalism. As such, we do see the ASP as putting limits on the ability of the Court to advance rights in some short-term situations. For instance, the ASP refused to allow the Court to pay for families of poor prisoners to visit them but that this should be paid for out of voluntary contributions (O’Donahue 2015). In so doing, the ASP limits the rights of indigent prisoners to family visits, which is an important human right across almost any criminal justice system. In addition, the ASP has sought to limit the ability of the Court to prosecute heads of state, though this has not been successful as demonstrated by the indictments of the Sudanese president (O’Donahue 2015, p. 108). This again demonstrates that the ASP is perhaps more interested in protecting state leaders than in defending the human rights of those who have been victimised by those states. In summary, then, we would argue that the ASP, on the whole, makes the Court more constitutional. Admittedly, this constitutionalism is international rather than global. However, when combined with the global constitutionalism explored in the second section, we would argue that overall, the Court is a constitutional body in the global and international system.

CONCLUSIONS Our argument has sought to demonstrate that the ICC embodies the principles of constitutionalism in the international order. To make this normative judgement we have identified two forms of constitutionalism that can be applied to the Court: international and global. We have looked to different elements of the Court’s internal functions to find evidence of its constitutionalism, with the Prosecutor and Trial Chambers representing the global and the ASP representing the international. More research needs to be undertaken as to how the Court’s position in the global order and its relationship with different elements of that order, such as the UN Security Council, does or does not reflect the global and international constitutionalism described here. In terms of its internal functions, however, we argue that it clearly reflects the principles of constitutionalism and, as such, helps to make the international and global order more constitutional as a result.

REFERENCES Ambos, K. (2009), ‘Confidential Investigations (Article 54(3)(E) ICC Statute) vs. Disclosure obligations: the Lubanga case and national law’, New Criminal Law Review, 12 (4), 543–68. Anoushirvani, S. (2010), ‘The future of the International Criminal Court: the long road to legitimacy begins with the trial of Thomas Lubanga Dyilo’, Pace International Law Review, 22 (1), 213–40.

518  Handbook on global constitutionalism Appeals Chamber (2006), ‘Judgement on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006’, 14 December. Birdsall, A. (2010), ‘The “Monster that We Need to Slay”? Global governance, the United States, and the International Criminal Court’, Global Governance, 16 (4), 451–69. Bosco, D. (2014), Rough Justice: The International Criminal Court in a World of Power Politics, Oxford: Oxford University Press. Cohen, J. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism, Cambridge: Cambridge University Press. Fassbender, B. (2009), The United Nations as the Constitution of the International Community, Leiden: Martinus Nijhoff. Habermas, J. (2006), The Divided West, trans. C. Cronin, Cambridge: Polity Press. International Criminal Court (ICC) Press Release (2008a), ‘Trial Chamber imposes a stay on the proceedings of the case against Thomas Lubanga Dyilo’, 16 June, ICC-CPI-20080616-PR324. International Criminal Court (ICC) Press Release (2008b), ‘Stay of proceedings in the Lubanga case is lifted – trial provisionally scheduled for 26 January 2009’, 18 November, ICC-CPI-20081118-PR372, ICC, The Hague. International Criminal Court (ICC) Press Release (2010), ‘Trial Chamber I orders the release of Thomas Lubanga Dyilo – Implementation of the decision is pending’, 15 July, ICC-CPI-20100715-PR559, ICC, The Hague. Kaoutzanis, C. (2013), ‘A turbulent adolescence ahead: the ICC’s insistence on disclosure in the Lubanga trial’, Washington University Global Studies Law Review, 12 (2), 263–311. Klabbers, J., A. Peters, and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford: Oxford University Press. Labunski, R. (2006), James Madison and the Struggle for the Bill of Rights, Oxford: Oxford University Press. Loughlin, M. and N. Walker (2007), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press. Mill, K. and M. Labonte (eds) (2018), Accessing and Implementing Human Rights and Justice, Abingdon, UK: Routledge. Mollers, C. (2013), The Three Branches: A Comparative Model of the Separation of Powers, Oxford: Oxford University Press. O’Donahue, J. (2015), ‘The International Criminal Court and the Assembly of State Parties’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford: Oxford University Press, pp. 105–40. Office of the Prosecutor (2008), ‘Prosecution’s Application for Leave to Appeal “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”’, 23 June, International Criminal Court, The Hague. Rawls, J. (1971), A Theory of Justice, Cambridge, MA: Harvard University Press. Stahn, C. (2015), ‘Introduction’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford: Oxford University Press, pp. lxxxiii–c. Stuart, H.V. (2008), ‘The ICC in trouble’, Journal of International Criminal Justice, 6 (3), 409–18. Trial Chamber I (2008), ‘Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008’, 13 June, International Criminal Court, The Hague. Trial Chamber I (2010), ‘Redacted decision on the Prosecutor’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU’, 8 July, International Criminal Court, The Hague. Waldron, J. (1995), The Dignity of Legislation, New Haven, CT: Yale University Press.

36. Global commercial constitutionalization: the World Trade Organization Joel P. Trachtman

The world does not have a consolidated constitution. Instead, it has an unwritten legislative constitution allowing legislation through customary international law and through treaty, it has specialized quasi-legislative capacity in the United Nations Security Council, it has episodic capacity for judicial review, it has a strong ‘state’s rights’ bias allowing its sub-units great autonomy, and it has a poorly enforced human rights function (see Lang and Wiener, Chapter 1 in this Handbook). It also has a growing commercial constitution, analogous and in some way comparable to the commercial constitutional aspects of the US Constitution, the Treaty on European Union, and other federal constitutions. As a historical point, it is worth noting that the US Constitution and the Treaty on European Union had, at their respective foundings, central goals of commercial constitutionalization (see Streit and Mussler 1994; Barnett 2001). The World Trade Organization’s (WTO’s) commercial constitution contains a detailed set of rules limiting the ability of sub-units to restrict trade and even to promote trade. In addition, this commercial constitution has special rules for decision-making, as well as extraordinary capacity for inter-state adjudication. However, its capacity for inter-state adjudication has important limits, including very limited capacity to apply non-WTO international law, such as environmental, labor or human rights law. In addition, beginning in 2017, the WTO experienced significant challenges to its dispute settlement capacity through the refusal by the US to join the required consensus to appoint new members of the WTO Appellate Body. This chapter describes the components of the global commercial constitution represented by the WTO, and suggests the reasons why they exist. It will extrapolate from these reasons to suggest how this global commercial constitution may change in the near future. The influence of the original General Agreement on Tariffs and Trade (GATT), founded in 1947, and the WTO, founded in 1995, has grown significantly. This influence has grown according to the intent of member states, with growing technological and economic capacity for trade, and in order to respond to growing institutional challenges to the mandate of the GATT/WTO to liberalize trade. The constitutional aspects of the GATT and WTO have also grown over time, largely in informal and semi-formal (non-treaty) ways. For example, the jewel in the constitutional crown of the GATT/WTO – mandatory dispute settlement – was adapted over time, only arriving at its present state at the formation of the WTO in 1995. The original GATT was intergovernmental, as opposed to transnational. The GATT did not even specify the creation of an international organization. While countries used it to make important treaty commitments, the GATT itself had no binding legislative, adjudicative, or executive power. The original GATT was simply an instrument to make legally binding commitments to reduce tariffs on goods, and to constrain defection from those commitments: it was ordinary international law. In that sense, it simply utilized the broader international legal constitution that allows states to make binding treaty commitments, but was not itself consti519

520  Handbook on global constitutionalism tutional. Of course, each member state retained power to veto any new binding commitments, at least to the extent that those commitments would bind that member, and dispute settlement only proceeded if the respondent agreed to allow it to do so. The GATT and the WTO present a story of functional adaptation of transnational authority over time: of adaptive constitutionalization. This adaptation was carried out by member states, not by the organization itself. This adaptation is consistent with a social scientific type of functionalism (for the development of this idea in international law generally, see Trachtman 2013). It responded to specific demands. The future growth of the global commercial constitution will also be dependent on specific demands. When we speak of the WTO in constitutional terms, we must recognize that, as mentioned above, this was not always an appropriate way to describe the WTO. It is also important to recognize that the narrow doctrinal frame of WTO law is an incomplete way of examining the constitutional aspects, and the constitutional future, of the WTO. This chapter describes four dimensions of the constitutionalization of the international law and legal context of the WTO: (1) the ways in which WTO law may increasingly be understood in terms of global economic constitutionalization; (2) the ways in which it has become appropriate to speak of transnational legislative, adjudicative, and executive capacity at the WTO (the ‘enabling constitution’ of the WTO); (3) the ways in which the WTO project has prompted consideration of the appropriate limits on the processes and substance of WTO transnational legislative, adjudicative, and executive capacity (the ‘constraining constitution’ of the WTO); and (4) the ways in which the growth of the enabling constitution of the WTO has diminished domestic constitutional protections, making it increasingly useful to consider international constitutional efforts to supplement those domestic constitutional protections (‘supplemental constitutionalization’ in response to the WTO).1

THE ECONOMIC CONSTITUTION OF THE WTO While this is not the place to go into too much detail, the economic constitution represented in the WTO is comparable to the economic aspects of the US Constitution, many other national constitutions and the Treaty on European Union. These national and European constitutions include negative integration, striking down local regulation that is discriminatory or, in some cases, that is disproportionate to the permitted non-protectionist ends. While the WTO’s rules in this regard are comparable to other ordinary international law, such as human rights law or environmental law, because they are not enabling or constraining constitutional rules at the international level, they have a character that is often referred to as ‘constitutional’ in discourse about constitutions. It is true that these types of rules can have a fundamental determinative character with respect to the type of society ‘constituted’. Importantly, the WTO itself generally lacks the authority to legislate in this area. So there is an analog to the US dormant Commerce Clause, striking down local legislation that impedes commerce within the national market; but there is no analog, within the WTO, to the affirmative Commerce Clause of the Constitution, according the US Congress authority to legislate to regulate inter-state commerce. However, instead, at least in the area of product 1 These categories of constitutionalization (other than economic constitutionalization) are drawn from my work with Jeffrey Dunoff (Dunoff and Trachtman 2009).

Global commercial constitutionalization: the World Trade Organization  521 regulation, which is central to the WTO, the WTO incorporates by reference rules established by international standardization bodies, even where those rules are not agreed unanimously. While states are not strictly required to comply with those rules, they have strong incentives to do so. Therefore, in that sense, the WTO incorporates a degree of jury-rigged transnational legislative power. Importantly, as I discuss in the next section, the ability to adjudicate, and thereby to add definition to the treaty rules, along with the ability to legislate in this intricate fashion, can be understood as types of enabling constitutionalization.

ENABLING INTERNATIONAL CONSTITUTIONALIZATION AT THE WTO The WTO is both a result and a cause of increasing economic integration. Increasing economic integration due to technological and economic change makes it more valuable to reduce inefficient barriers. (It is worth noting that not all barriers are inefficient – there are, for example, efficient regulatory differences that have the effect of impeding trade.) The reduction of barriers, in turn, increases economic integration. Therefore, more international economic law becomes desirable. Interestingly, more general international law also becomes desirable. With more trade comes more spillovers. For example, without trade, there is no reason to be concerned with the product regulation in foreign countries. Without trade, there is no ‘leakage’ from domestic carbon taxes. So, increasing economic integration also causes increasing demand for non-economic international law. Increasing demand for economic law and for non-economic law provides incentives to create legislative mechanisms to facilitate law-making. Thus, as the ability to generate new international legal rules to discipline national regulation or to fill lacunae becomes important, globalization gives rise to calls for greater capacity to make law, which capacity Jeffrey Dunoff and I have called ‘enabling international constitutionalization’ (Dunoff and Trachtman 2009, pp. 10–11) in order to facilitate legislation of welfare-improving restrictions on protectionist or other inefficient domestic regulation, and in order to respond to changing needs for international regulation. This legislation might or might not occur within the WTO. Enabling international constitutionalization at the WTO – structures that facilitate the production of WTO law – would mean the end of the WTO as a ‘member organization’ in which each member (in formal terms) retains veto power. The demand for additional international law is the driving force behind enabling international constitutionalization. This demand for additional international law can arise from the demand for liberalization (which in turn is caused by other social forces, including changes in technology, changes in the structure of production, and changes in economic understanding), but the production of law to enhance liberalization has two types of knock-on effects: (1) a resulting demand for other types of international law; and (2) where the initial liberalization measures take the form of negative integration, as described below, a resulting demand for positive integration. We see both of these types of knock-on effects in the history of the European Union. Note that, as described below, the establishment of enabling international constitutionalization creates a demand for nuanced controls in the form of constraining international constitutionalization.

522  Handbook on global constitutionalism The most common type of negative integration standard is national treatment-type non-discrimination. In a sense, these rules against protectionism are specialized rules of dynamic subsidiarity. They contingently remove power from the state under a specified range of circumstances. Interestingly, these rules may be understood as serving a ‘constraining constitutionalization’ role at the domestic level: they constrain the production of ordinary law. However, at the international level, they are ordinary international law, restricting state action. On the other hand, to the extent that international judges are authorized, explicitly or implicitly, to interpret or craft these rules of negative integration – to engage in judicial legislation – the authorization may be understood as a kind of enabling constitutionalization. These types of adjudicative standards used in negative integration compete with legislative solutions to the same problems. Legislative solutions – known in this context as ‘positive integration’ – might develop regimes of harmonization or recognition, or blended regimes of harmonization and recognition, as in the European Union (EU) ‘essential harmonization’ program. These legislative solutions could enjoy greater political support than judicial decisions addressing the same issues. It is in this regard that negative integration devices, such as those in the WTO, that may be used to strike down domestic regulatory regimes, may create demand for positive integration devices, such as those associated with majority voting. Deregulation through negative integration may create demand for re-regulation at the central level through majority voting-based legislative capacity. This results in demand for enabling constitutionalization in terms of legislative capacity. Majority voting among states might give rise to demands for greater democratic accountability: a kind of countervailing constraining constitutionalization. Pascal Lamy has called for a WTO parliamentary consultative assembly for just this reason (Lamy 2000; see also Shaffer 2004). Thus, the power of adjudicative negative integration gives rise to a need for the check of legislative capacity for positive integration. The possibility of centralized legislation gives rise to the need for centralized democratic accountability. This diagram elides much nuance, but it is intended to provide a suggestion of how the commencement of economic integration may set off a cascade of governance demands along a predictable path. Giovanni Maggi and Massimo Morelli show that a key parameter in determining whether to choose majority voting in connection with an international organization like the WTO is the governments’ discount factors, representing their patience (Maggi and Morelli 2006; see also Norman and Trachtman 2005). As Maggi and Morelli explain, their model posits that: the voting rule is chosen ex ante, under a veil of ignorance about future issues. Thus, the optimal voting rule maximizes the ex ante expected utility of the representative member subject to self-enforcement constraint: a government must have incentive to comply with the collective decision even if it happens to disagree with it. (Maggi and Morelli 2006, p. 1138)

With high discount factors – greater valuation of future payoffs from cooperation – there are smaller incentives for defection, and less need for what Maggi and Morelli determine are the compliance benefits of a rule of unanimity. Greater likelihood of repeated play and greater frequency of interaction – increasing the amount at stake over a shorter time – also promotes compliance. However, note that the frequency of interaction parameter need not be limited to interaction within a particular organization or issue area (see generally Norman and Trachtman 2005, explaining the role of multi-sector interaction).

Global commercial constitutionalization: the World Trade Organization  523 Thus, their model ‘predicts that a non-unanimous rule is more likely to be adopted in organizations where governments are more stable, and in “busier” organizations’ (Maggi and Morelli 2006, p. 1138). They also find that greater correlation in the preferences among member states increases the likelihood of a non-unanimous voting rule. Furthermore, a non-unanimous rule may be efficient where there is external enforcement. Conversely, Maggi and Morelli also show that where an international agreement must be self-enforcing (there is no external enforcement), an organizational rule of unanimity (or consensus) may be efficient under certain circumstances. In order to do so, they find that unanimity eliminates the possibility for defection, but there are at least two reasons why this would often not be the case. First, states may vote cynically, never intending to comply with the resulting rule, but perhaps hoping that others will do so.2 Second, even without cynicism, unanimity can result from ‘package deals’ under circumstances in which a state agreeing to the package would prefer not to comply with one or more components of the package (Maggi and Morelli 2006, p. 1151, recognize this issue). In addition, circumstances may change such that a domestic political equilibrium that supported entry into the relevant obligation no longer exists to support compliance with the obligation. Consent would tend to imply compliance in circumstances only (1) where consent is known to be based on domestic political support for the behavior that constitutes compliance (even then the domestic political equilibrium may change so as to undermine the tendency to comply); and/or (2) where the giving of consent activates a lobby that believes that promises should be kept. So, consent is not sufficient for compliance, but nor is it necessary for compliance, because multi-sector contact may induce compliance in a way that makes the larger relationship self-enforcing while the narrower rule is not. Indeed, Maggi and Morelli suggest that the availability of transfers expands the range of discount factors for which a rule of majority voting is sustainable. Perhaps even more importantly, the assumption that most rules of international law or treaties must be self-enforcing may be too strong as well. The common understanding of international law in the economics literature assumes that for international law to be effective, it must have the characteristics of a self-enforcing contract (see generally, Maggi 1999). The tools of analysis used by economics for particular legal rules or regimes is thus non-cooperative game theory, where it is assumed to be impossible to enter into exogenously binding contracts. Rather, the internal dynamics of the rule or regime must be structured so that it is endogenously binding – so that it has internal dynamics that will result in compliance. Much of this analytical perspective is factually dependent on the definition of the scope of the game being played. For example, if the game is isolated as the ‘reduction of tariffs on bananas game’, or even as the broader ‘trade liberalization game’, then perhaps the requirement for self-enforcing contracts is appropriate. If instead, we understand the trade liberalization game as part of a broader ‘general international law game’, then it is not true that the trade liberalization component must itself be self-enforcing. Rather, the question is whether the general international law game is self-enforcing. Similarly, in domestic society, we do not

Maggi and Morelli (2006, p. 1144) only examine truthful equilibria. Maggi and Morelli’s model involves voting over just two options: against or in favor of a collective action that can only provide benefits if all participants contribute. Given the binary nature of voting in this model, a voter can never gain from voting cynically. However, in other policy circumstances, states may have incentives to vote cynically. 2

524  Handbook on global constitutionalism need to ask whether the domestic ‘environmental protection game’ is self-enforcing, because it is embedded in a broader legal and constitutional system. The domestic system starts out equally anarchic to the international system (see generally, Goldsmith and Levinson 2009). It is true that in anarchy, we must search for self-enforcing agreements. However, similar to the fundamental basis for domestic law, the self-enforcing character of international law must be assessed looking at the totality of the international law relationships between states, rather than by isolating individual relationships. There is a much greater possibility for reciprocity, and for what we might call a self-enforcing system, when we examine the entire set of relationships, and examine them across time, than when we examine a single obligation. The economists’ perspective, expecting individual legal rules or organizations to be self-enforcing when considered separately and in the short term, is both ignorant of the networked power of law and impotent to address long-term, highly asset-specific, and asymmetric, cooperation problems. As to both domestic law and international law, we might say that each individual thread of obligation may be weak or strong – if it is weak, it will be unable to sustain cooperation. However, once a variety of threads are woven together in a ‘fabric’ of society, the fabric can be considerably stronger than any individual thread. One important finding of the Maggi and Morelli work is that if external enforcement is available, the ex ante efficient rule is typically some type of majority voting (see generally, Guttman 1998; Aghion and Bolton 2003). However, I have argued above that a rule of unanimity, as suggested by Maggi and Morelli, would not necessarily solve enforcement problems, because unanimity does not necessarily imply subsequent compliance. So there may be fewer circumstances in which a rule of unanimity would be attractive. Today, the WTO does not use majority voting, although the formal treaty terms permit it. The main enabling constitutionalization, or transnational, aspect of the WTO is its dispute settlement system. Under Article 3.2 of the WTO Dispute Settlement Understanding, dispute settlement cannot add to or diminish rights under the WTO agreements. So, it may seem strange to say that dispute settlement can nevertheless, as a practical matter, be understood as a form of legislative action. There is an important quasi-legislative role for dispute settlement to play at the international level. This role is often one of elaboration and application of general ‘standards’ set by legislatures, as opposed to more specific ‘rules’. This feature has been criticized by the US government in connection with its decision, beginning in 2016, to block the appointment of new members to the WTO Appellate Body, thereby undermining the effectiveness of WTO dispute settlement. Often, in connection with EU legal affairs, supremacy and direct effect are noted as features of constitutionalization. Indeed, these features, along with judicial review, are seen as the central features of constitutionalization, or at least of judicial constitutionalization. However, these features of EU law must be understood primarily as constitutionalization at the domestic level: they enabled EU law to have constitution-like power at the domestic level in the EU context. They act to restrict the scope of ordinary law at the domestic level, and thus play a quasi-constitutional role at that level. The same would be true in the case of supremacy and direct effect of WTO law. Interestingly, of course, WTO law, as international law, is already supreme over municipal law within the international legal system (the same was true of the Treaty of Rome). However, it is within the domestic legal system that this supremacy, and effect, is contested. So, in connection with supremacy and direct effect, the interesting international aspect is the source of the domestic constitutional rule: whether it is a matter of

Global commercial constitutionalization: the World Trade Organization  525 domestic law or international law. However, the main point is that supremacy and direct effect are generally only ‘constitutional’ in the domestic legal system, and not in the international legal system. Before we move on, concluding that the discussion of supremacy and direct effect as international constitutional issues is merely a category mistake, we must note that there is another, more subtle, effect that can be understood in terms of international constitutionalization. Under the prevailing horizontal structure of the international legal system, with only limited mandatory adjudication, and where even such adjudication as exists cannot generally form the basis for strong enforcement, international law often lacks the compliance force of municipal law. However, direct effect allows the international legal system, and such international law as is directly effective, to take advantage of the strong compliance force provided by the municipal legal system. In this sense, direct effect is a component of enabling international constitutionalization: it provides legislative capacity to the international system by lending the relevant international law greater force than it would otherwise have. Supremacy within the municipal setting plays a similar role.

THE DEMAND FOR CONSTRAINING INTERNATIONAL CONSTITUTIONALIZATION AND SUPPLEMENTAL INTERNATIONAL CONSTITUTIONALIZATION While there are growing demands for international legal rules in the WTO and outside the WTO, there are rising concerns regarding the accuracy and accountability of efforts to increase disciplines on national regulatory autonomy, as well as concerns regarding the ability of these efforts to encompass the full scope of public policy desiderata, giving rise to calls for ‘constraining international constitutionalization’. Constraining international constitutionalization might take the form of restrictions on the scope of law-making at the international level, either in terms of subject matter or in terms of procedural limitations. Subject matter limitations might take the form of requirements for super-majorities (relative to legislation on other subject matters), or might take the form of carved-out national rights that are, in effect, inalienable, or at least unalienated (see Mueller 2005).3 Finally, the lacunae exposed by globalization give rise to calls for ‘supplemental constitutionalization’, in some cases in the context of the WTO (Peters 2006). With greater economic integration comes the possibility of greater regulatory arbitrage, and increasing pressure on domestic regulatory preferences. Yet, the WTO is but one component of a variegated and increasingly dense tapestry of global governance. So, it would be wrong to examine the WTO separately from the broader institutional context in which it exists. Furthermore, while it is possible that acts of enabling constitutionalization, constraining constitutionalization, and supplemental constitutionalization may best take place within the organizational confines of the WTO, it is equally plausible that they would best take place in other parts of the international legal system. Here, there are Mueller explains that the difference between a rule of unanimity and a ‘right’ is that a right cuts off wasteful negotiation and lobbying to reach unanimous agreement, where it is possible to decide in advance that such negotiation and lobbying will be fruitless. 3

526  Handbook on global constitutionalism two critical questions. The first is a question of a type of horizontal and vertical constitutional subsidiarity – where should the constitutional function best be addressed? The second is that of coherence – how do the different constitutional functions fit together? Enabling constitutionalization and constraining constitutionalization are two sides of the same coin (see Lang and Wiener, Chapter 1 in this Handbook). As a sculptor adds clay with one tool, and cuts it away with another, so enabling constitutionalization adds to the powers of the international legal system, while constraining constitutionalization refines the grant of powers, and artfully, and often conditionally, cuts back on it. As suggested above, accountability is a subtle concept, as is the idea of a democratic deficit. Democracy in the sense of majority rule is not necessarily enhanced by supermajority provisions, or by other devices that constrain international governmental action, because these devices prevent the majority from achieving its goal. Under majority voting, concern for fundamental rights serves as a form of constraining international constitutionalization, specifying areas into which international legislation may not infringe. Thus, if majority voting were implemented at the WTO, it would seem appropriate also to implement a set of human rights constraints on the decisions taken by majority vote. A similar process took place in the EU, where the Solange decisions gave rise to the establishment of an EU human rights capacity.

THE FUTURE There will be increasing demand for international law in a number of areas, on the basis of existing and future conditions. The WTO may satisfy some of this demand, but there will be other constitutional structures, preferential trade agreements that allow sub-multilateral groups of countries to intensify their integration. Globalization will increase demand for supplemental constitutionalization. More importantly, the functional demand for increasing international law will result in increasing demand for enabling constitutionalization. Increasing demand for enabling constitutionalization will bring with it demand for constraining constitutionalization. It is not a contradiction to say that as the international legal system becomes more powerful, it will require greater constraint. That is, as the international legal system looks more like a government, it will require greater limitations.

REFERENCES Aghion, P. and P. Bolton (2003), ‘Incomplete social contracts’, Journal of European Economic Association, 1 (1), 38–67. Barnett, R. (2001), ‘The original meaning of the Commerce Clause’, University of Chicago Law Review, 68 (1), 101–47. Dunoff, J.L. and J.P. Trachtman (2009), ‘A functional approach to global constitutionalism’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World: Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 3–36. Goldsmith, J. and D. Levinson (2009), ‘Law for states: international law, constitutional law, public law’, Harvard Law Review, 122 (7), 1791–1868. Guttman, J. (1998), ‘Unanimity and majority rule: the calculus of consent reconsidered’, European Journal of Political Economy, 14 (2), 189–207.

Global commercial constitutionalization: the World Trade Organization  527 Lamy, P. (2000), ‘What are the options after Seattle?’, speech to European Parliament, Brussels, 25 January 2000. Maggi, G. (1999), ‘The role of multilateral institutions in international trade cooperation’, American Economic Review, 89 (1), 190–214. Maggi, G. and M. Morelli (2006), ‘Self-enforcing voting in international organizations’, American Economic Review, 96 (4), 1137–58. Mueller, Dennis (2005), ‘Rights and liberty in the European Union’, Supreme Court Economic Review, 13, 1–17. Norman, G. and J.P. Trachtman (2005), ‘The customary international law game’, American Journal of International Law, 99 (3), 541–80. Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of international norms and structures’, Leiden Journal of International Law, 19 (3), 579–610. Shaffer, G. (2004), ‘Parliamentary oversight of international rule-making: the political and normative context’, Journal of International Economic Law, 7 (3), 629–54. Streit, M. and W. Mussler (1994), ‘The economic constitution of the European Community: from Rome to Maastricht’, Constitutional Political Economy, 5 (3), 319–53. Trachtman, J.P. (2013), The Future of International Law: Global Government, Cambridge: Cambridge University Press.

PART VI NEW HORIZONS

37. Global constitutionalism and outer space governance Adam Bower

INTRODUCTION Access to, and use of, outer space is rapidly expanding: over 70 states now possess space programmes and they are joined by a diverse array of commercial and non-governmental actors. There are now over 5,465 active satellites orbiting our planet providing vital data platforms that enable every aspect of modern information-centric societies (Union of Concerned Scientists 2022). This number is rapidly increasing, posing significant challenges for the allocation of ultimately finite orbital locations and radiofrequency spectrum and the management of space debris which threatens the sustainability of Earth orbit. Further afield, the extraction of natural resources from celestial objects and human settlement on the Moon and (perhaps later) Mars are no longer the stuff of science fiction but may soon become reality. The strategic value of orbital and deep space has spurred competition and increased the prospect of military conflict among the major space powers of China, Russia and the United States. The deepening human reliance on outer space, and the space environment’s inherent fragility, has highlighted the need for coordinated extra-global governance to enshrine foundational expectations and distribute rights, responsibilities and benefits in this unique domain. Outer space thus provides an interesting and under-explored setting in which to examine the prospective constitutionalisation of global affairs. The 1967 Outer Space Treaty (OST) is often characterised as the de facto constitution for outer space as it establishes the core principles governing human and robotic space activities and provides a framework for further institutional development (United Nations General Assembly 1966). Most importantly, the OST reserves space as a peaceful domain free from appropriation and assertions of sovereign control, in which the exploration and uses of outer space are undertaken on the basis of equality. And indeed, space has been a setting of remarkable cooperation alongside intense competition among the leading space powers (Cross 2019). Yet there is widespread agreement that space law has not kept pace with dramatic technological, economic and political developments that have radically expanded the scope and tempo of space activities (Masson-Zwaan and Cassar 2019, p. 195). This, in turn, raises the question as to whether existing institutions adequately address the needs of a (loosely defined) ‘global public interest in outer space’ (Jakhu and Pelton 2017, p. 15). This chapter uses constitutionalism as a lens for exploring the nature and future prospects of outer space law and governance. I first briefly introduce the main elements of this unique legal regime. The subsequent analysis makes the case that outer space law, with the OST as its centrepiece, is a distinctive but weakly institutionalised regime when evaluated from the constitutional perspective of the rule of law, inclusion (and exclusion) of actors and associated allocation of rights and benefits, and sources and distribution of law-making powers. Following Birdsall and Lang’s distinction (Chapter 35 in this Handbook), space law more 529

530  Handbook on global constitutionalism closely resembles international constitutionalism with states as the primary initiators and subjects. Importantly, the principal institutions were negotiated during the Cold War era dominated by two preeminent spacefaring states, the Soviet Union and United States, and reflect their predominant influence. The marginalisation of other actors and perspectives inevitably informs both the substance and legitimacy of the institutions. Calls for more inclusive forms of governance – akin to global constitutionalism – reflecting the diversity of space actors and impact of space technologies on humanity as a whole have not been translated into institutional forms. As this Handbook makes clear, global constitutionalism is characterised by the complex intersection of politics, law, and ethics. At core, outer space governance is animated by a tension between visions that respectively emphasise individualistic freedom versus collective equality in the access to, use of, and benefit from space. I suggest that the outer space legal order rooted in the OST is under increasing strain in the face of rapidly expanding scientific, commercial and military space activities. From a constitutional perspective, the space law regime possesses limited tools for managing these challenges and thereby mitigating congestion, competition and conflict in the heavens. There is, however, no consensus as to whether governance gaps stem from a lack of law (which necessitates further institutional development) or the under-use of existing mechanisms. I illustrate these dynamics with reference to examples involving military space operations, the allocation of satellite orbits and radiofrequency spectrum, exploitation of natural resources in celestial objects, and human exploration and settlement beyond Earth.

THE STRUCTURE OF INTERNATIONAL SPACE LAW Outer space law is conventionally understood to comprise, first and foremost, the five core multilateral treaties1 and five sets of principles2 negotiated in the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) and adopted by the UN General Assembly (UNGA) (Tronchetti 2013; Jakhu and Dempsey 2016). These instruments establish the primary legal norms and rules in this domain. Intergovernmental organisations with a global (e.g., International Telecommunications Union) or regional (e.g., European Space Agency) focus contribute to the further elaboration of this legal regime. Finally, in response to rapidly proliferating space activities, a growing number of states are adopting national laws and establishing regulatory bodies to implement international legal obligations and manage civilian and commercial space operations under their jurisdiction. Along with other specialised branches of public international law, space law is subject to the fundamental rules of the international legal order found most especially in the United The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty, 1967), Agreement on the Rescue and Return of Astronauts and Objects Launched into Outer Space (Rescue Agreement, 1968), Convention on International Liability for Damage Caused by Space Objects (Liability Convention, 1972), Convention on Registration of Objects Launched into Outer Space (Registration Convention, 1975) and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement, 1979). 2 The Declaration of Principles (1963), Broadcasting Principles (1982), Remote Sensing Principles (1986), Nuclear Power Sources Principles (1992) and Benefits Declaration (1996). 1

Global constitutionalism and outer space governance  531 Nations Charter (Hobe et al 2017, pp. 271–84). As such, outer space activities are conducted in the shadow of the constitutive norms of pacta sunt servanda, sovereign equality, territorial integrity, non-interference, the right of self-defence and the peaceful settlement of disputes. At the same time, space law is connected to the much more intensely developed legal regimes in other issue areas such as the law of armed conflict, human rights, trade, and environmental protection (Aganaba-Jeanty 2016; Aoki 2016). This, in turn, offers opportunities for extending existing space institutions though the application of adjacent legal norms and rules, rather than via multilateral negotiation.

THE RULE OF LAW IN OUTER SPACE A primary question for any legal order concerns its temporal, substantive and spatial boundaries. Outer space is widely recognised as a distinctive domain owing to its unique physical properties: it is effectively infinite and an extremely inhospitable environment for robotic systems and – especially – human beings. Moreover, the vast distances and substantial limitations on travel imposed by physics mean that the vast majority of space activities take place very close to Earth, in the orbits around our planet and on nearby celestial objects (our Moon and asteroids). So, while outer space is ‘out there’, space missions begin on Earth and service its communities; as such, our uses of outer space are inherently embedded within terrestrial political, economic and normative systems. But while outer space is understood as unique, there is less clarity regarding its precise parameters. Outer space law emerged in parallel with early space exploration and as such was informed – and limited – by the contemporary scientific understanding of the universe. Even key terms like ‘outer space’ and ‘celestial bodies’ lack clear definitions in core legal texts. Interestingly, there is no internationally agreed boundary between terrestrial air space and outer space and thus a clear dividing line where space law begins and ends.3 These factors raise important dilemmas concerning the ultimate scope of space law’s application, in light of expanding activities and vastly greater scientific knowledge of the outer space environment. Among the corpus of space law, the 1967 OST enjoys a degree of supremacy that is characteristic of constitutions, due to its temporal primacy, substantive scope and widespread adoption (United Nations General Assembly 1966).4 Prominent scholars have thus characterised the OST as ‘the Magna Carta for outer space’ (Hobe et al 2017, p. 137; Masson-Zwaan and Cassar 2019, p. 181) owing to the manner in which the treaty establishes the foundational normative framework governing human and robotic space activities provides the animating impetus for the subsequent development of space law. It has thus been argued that the core provisions of the OST in Articles I-VII now constitute customary international law (Larsen 2018, p. 138, fn. 3). Subsequent, more specialised, treaties and principles can be considered the lex specialis of space law established by the OST (Masson-Zwaan and Cassar 2019, p. 192).

3 It is generally accepted that outer space begins at roughly 80–100 kilometres above the Earth’s surface, where the atmosphere becomes too thin to sustain flight by aircraft and other aeronautical vehicles. Yet an object cannot sustain itself in orbit below approximately 160 km, which marks the lower boundary for artificial satellites. 4 As of August 2022, 112 states are parties to the OST, while a further 23 are signatories. See https://​ www​.unoosa​.org/​oosa/​en/​ourwork/​spacelaw/​treaties/​status/​index​.html.

532  Handbook on global constitutionalism The OST’s emergence in the midst of the Cold War Space Race provides the critical context in establishing the core commitments of the space regime. The launch of the first artificial Earth-orbiting satellite, Sputnik 1, by the Soviet Union in October 1957 generated both wonder and widespread concern as the ability for an object to freely transit above the Earth and across national borders (as required by orbital physics) ‘creat[ed] a new spatial reality’ that challenged the UN Charter’s newly established geopolitical order rooted in territorially defined sovereign states (Blount 2021, p. 111). The UNGA soon took up the issue and a dedicated institution – UNCOPUOS – was established in 1959 as the focal point for scientific and legal deliberations concerning space activities, which prominently included the negotiation of the OST. Of course, the initial spacefaring states, the Soviet Union and United States, were also the nuclear-armed superpowers engaged in a global ideological competition in which the potential utility of satellites for military and intelligence applications was quickly appreciated. Early diplomatic initiatives were thus explicitly motivated by a desire to prevent the spread of Cold War superpower conflict to outer space. In this light, the OST sought to address the emerging technological possibilities for human and robotic spaceflight, but more fundamentally to establish a normative framework for international peace and security above Earth by enshrining basic principles that distinguished outer space as an exceptional domain. Yet in so doing, diplomats had to navigate between competing ideological (capitalist and socialist) and geopolitical (Global North and Global South) perspectives, leading to necessary compromises and ambiguities. In keeping with the constitutional form, therefore, the OST expresses its core objectives in broad language. This decision to eschew detailed elaboration of substantive issues enabled a rapid negotiating process but introduced significant interpretative challenges especially given the technical nature of space activities (Hobe et al 2017, pp. 178–9). The OST articulates three fundamental principles, each of which contains internal tensions that persist to the present day. First, OST Article I asserts that outer space ‘shall be the province of all mankind’ and establishes four freedoms – for exploration, use, access and scientific investigation – that render celestial objects and the voids between them available to all and for the benefit of all, ‘on a basis of equality and in accordance with international law’. Questions of constituent power are addressed below, but for now it is important to highlight that the OST applies to states as the chief spacefaring actors and representatives of human communities. This conception of freedom is a double-edged sword: spacefaring actors may engage in space activities without approval from other states, but these freedoms are conditioned by an expectation that ‘such activities are undertaken for the common benefit of all [s]tates’. (Hobe et al 2017, pp. 194 and 204). Moreover, Article I maintains that states should enjoy these benefits ‘irrespective of their degree of economic or scientific development’, and hence their current space capabilities (or lack thereof). Relatedly, Article II prohibits the appropriation of celestial objects and rejects assertions of sovereignty beyond Earth via forms of ownership, occupation, annexation or conquest. This provision needs to be read in the context of the decolonisation movement that was radically reshaping the global order in the same period. These experiences were fresh in the minds of newly created states who wanted to avoid the extension of extra-territorial jurisdiction and resource exploitation as replacement for direct colonial control. As such, Article II reflects an attempt to pre-emptively prevent forms of coercive acquisition that were central to the development of the modern international system, both as a means of ensuring greater equity and foreclosing a historically prominent source of conflict among states. In these respects, Article II

Global constitutionalism and outer space governance  533 serves as a counter-balance to Article I’s permissive approach. Its normative centrality is such that Article II is now widely regarded as a jus cogens norm that shapes the orderly conduct of space exploration and use (Hobe et al 2017, pp. 248–69).5 The refusal to grant sovereign rights in space holds further implications for governance on Earth: while conventional aircraft must respect national borders, domestic jurisdiction over airspace does not extend to outer space; hence, a spacecraft traversing high above does not constitute a violation of territorial integrity. This is vital concession to physics since, with limited exceptions, an object orbiting Earth must continually circumnavigate the globe.6 Yet the relative brevity of Articles I and II leaves some critical questions unanswered. In terms of substantive scope, the text does not specify whether the articulated freedoms are unlimited or whether some forms of exploration, use, access and investigation might be excluded or circumscribed due to their anticipated or observed effects. Presumably, activities are permitted unless explicitly prohibited elsewhere in the OST (Hobe et al 2017, pp. 194–8). More fundamentally, these articles reflect an uneasy compromise between two opposing conceptions of freedom that respectively emphasise the individualistic exploitation of resources versus collective stewardship and equity in the interests of all humanity (Aganaba-Jeanty 2016). Cris van Eijk perceptively characterises this as ‘a site of hegemonic contestation fought with normative weaponry’ (van Eijk 2021, p. 6). Notably, outer space is frequently described as a global commons – like Antarctica or the high seas – beyond national jurisdiction and protected from all forms of collective or individual ownership. However, international law does not formally designate space as a commons and major space powers (especially the US) reject this legal interpretation. Finally, OST Article IV insists that human and robotic space activites shall be ‘exclusively for peaceful purposes’.7 Blount has argued that this commitment amounts to the ‘underpinning norm of space exploration’ and ‘the normative threshold for the legality of any space activity’ (Blount 2021, p. 114). Yet Article IV is notably under-inclusive and ambiguous in key respects: it bans the placement of nuclear weapons and other weapons of mass destruction in space but does not address so-called conventional weapons, and prohibits military installations and weapons on the Moon or other celestial objects but not in the voids between these objects. This outcome reflects the desires of the then-dominant Soviet and US superpowers to institutionalise the notion of space as a peaceful domain within the UN system but retain negotiations over limitations on military space technologies as a bilateral prerogative (Hobe et al 2017, p. 112). At a more basic level, the OST does not define ‘peaceful purposes’ and this foundational principle has subsequently come to be interpreted in accordance with the interests of the most militarily advanced spacefaring states. The international community has adopted the view, initially promoted by the US, that the use of satellites and ground stations to support Interestingly, the US and USSR did not assert ownership claims in relation to their respective Moon missions. 6 Satellites positioned in geosynchronous or geostationary orbit (35,786 km above the Earth’s equator) have an orbital period that matches the Earth’s rotation, and so remain over the same area when viewed from the ground. 7 This normative commitment is reinforced by Article III’s insistence that all activities be undertaken ‘in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding’. 5

534  Handbook on global constitutionalism national security operations on Earth – including for intelligence collection and reconnaissance, missile early warning, communications, command and control of forces, and directing precision-guided munitions – is permitted. Peaceful purposes therefore specifically prohibit hostile acts against another actor’s space assets or the use of space-based weapons to target Earth if not undertaken in self-defence (Azcárate Ortega 2021). Consequently, Article IV’s substantive limitations provide the basis for enduring contestation concerning the precise threshold for determining a use of force in outer space and the permissible targets and forms of attack. This is a pressing concern in light of expanding military space programmes and the increasing integration of commercial space systems into core national security missions (Weeden and Samson 2022).

CONSTITUENT POWER: RECOGNITION, RIGHTS AND RESPONSIBILITIES IN SPACE GOVERNANCE The above considerations raise the even more fundamental question of who sets the rules and to whom those rules apply. As the Handbook editors note, by associating conceptions of constituent power and contestation, constitutionalism offers a more inclusive normative and analytical account of agency which can encompass agents of differing local-to-global scales, objectives and relationships to existing institutions. In a constitutional order, inclusivity stems from formal recognition. Seen from this perspective, the OST defines legitimate actors and by implication allocates rights and responsibilities, as well as benefits, on that basis. It is therefore important to ask: for whom does space law claim to speak and who (or what) should it represent? While couched in legal language, these choices are inherently political (van Eijk 2021). In one sense, the OST offers the broadest possible conception of space law’s constituency by framing outer space as ‘the province of all mankind’ and, in Article V, classifying astronauts as ‘envoys of mankind’ (more on this last word shortly). Yet only around 600 people have ever been to space and the vast majority of human beings will never have this opportunity (Roulette 2021). Nevertheless, space technologies are increasingly central to the operation of modern societies and entwined in our daily lives. And we are all biologically reliant on energy from our Sun and vulnerable to solar radiation and collisions from asteroids. Hence, on a quite fundamental level, the entire global community (to say nothing of all other living species) is implicated in human and robotic space activities and the natural environment in which they take place. This has led to more recent suggestions that outer space law contains a foundational commitment to ensuring the preservation and sustainability of outer space itself, rooted in a conception of inter-generational social justice (Aganaba-Jeanty 2016). Despite this, space law is state-centric and does not provide rights and protections, or impose obligations, directly on human beings but rather encompasses individuals and groups by virtue of their nationality (Hobe et al 2017, pp. 191–8). The outer space regime thus constitutes a form of what Birdsall and Lang (Chapter 35 in this Handbook) characterise as international constitutionalism in which states are the central subjects and agents of the legal and political order. Notably, OST Article IX establishes an expectation of reciprocity whereby spacefaring actors ‘shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space … with due regard to the corresponding interests of all other States Parties to the Treaty’. Much of the proceeding discussion applies, legally speaking, to states alone. The procedural dimensions of this statist focus will be explored in the subsequent

Global constitutionalism and outer space governance  535 section. Here I want to suggest that the regime established by the OST is constituted by four more specific omissions involving: (1) ‘developing’ states (and by extension, Global South peoples); (2) non-state actors; (3) women; and (4) the future of our species beyond Earth.8 Each of these substantially limits the universal aspirations expressed in the OST. First, the temporally specific emergence of outer space law during the Cold War left an indelible mark on the legal regime by prioritising the interests of the leading space powers and their allies. As noted above, decolonisation informed the normative impetus and substance of the OST, particularly in its commitment to freedom and collective benefit and corresponding rejection of appropriation. But while decolonisation rapidly produced a large number of newly independent states, these actors initially lacked national institutions and high-technology sectors that would allow them to access outer space. As such, while Global South states (which are by no means a monolithic entity) made major contributions to the development of international law in other domains, their influence over space law was impeded by their enduring marginalisation in key diplomatic fora; formal legal equality did not translate into recognition as consequential stakeholders (van Eijk 2021, p. 8). Yet developing states have not been without agency. Indeed, in 1976 a collection of equitorial countries joined together to assert sovereignty over the valuable geostationary orbit (GEO) above their territories (Brazil et al 1976). Due to orbital mechanics, satellites in a GEO orbit match the Earth’s rotation and remain in a fixed point in the sky when viewed from the ground. This is hugely beneficial for military monitoring, weather observation and commercial telecommunications. Yet at that time, GEO satellites were operated exclusively by the US, its allies and the USSR. Signatories to the Bogotá Declaration thus characterised GEO as a ‘natural resource’ and ‘unique facility’ dominated by a few states, representing a ‘technological partition of the orbit, which is simply a national appropriation’ by other means. The involved states advanced a novel claim that since GEO ‘depends exclusively on its relation to gravitational phenomena generated by the earth … it must not be considered part of the outer space’ and is thus not subject to the prohibition on national appropriation in OST Article II. Rather, since satellites in GEO are stationed over the equator, segments of the GEO zone should be considered as extensions of the sovereign territory (airspace) of the states underneath. Pointedly, these states contended that the OST cannot be considered as a final answer to the problem of the exploration and use of outer space, even less when the international community is questioning all the terms of international law which were elaborated when the developing countries could not count on adequate scientific advice and were thus not able to observe and evaluate the omissions, contradictions and consequences of the proposals which were prepared with great ability by the industrialized powers for their own benefit.

This position was rejected by the USSR and US and did not progress. Nonetheless, the Bogotá Declaration represents an important early attempt to interpret core provisions of the OST in order claim benefits from space activities in which states (and their peoples) were not directly involved. In recent decades, the number of states with national space programmes and assets has rapidly increased, but ‘barriers to entry still exist, largely disguised as security constraints …

8 Other authors have provided much richer examination of these themes. I offer only brief reflections here.

536  Handbook on global constitutionalism [connected to] restricted international cooperation or technology transfer, even where commercial’ (Aganaba-Jeanty 2016, p. 3). As a consequence, space activities remain overwhelmingly concentrated among the core space powers of China, Russia and the United States.9 Membership in the OST and UNCOPUOS has steadily grown, but remains at roughly half of all states.10 This has led to calls for regional institutional development – such as the creation of a dedicated African space sector – to enable developing societies to engage in, and benefit from, twenty-first century space activities (Asiyanbola et al 2021). Second, outer space law beginning with the OST recognises the potential contributions by non-state space actors like companies and academic institutions, but delegates their regulation to states, via national laws and institutions. OST Article VI insists that state parties to the treaty retain legal responsibility for all space activities undertaken under their jurisdiction. States are thus obliged to authorise, monitor and register space launches and satellite operations. And in contrast to most domains of international law, under OST Article VII states (and not the ultimate operators) remain legally liable for damage involving space assets.11 As a progressively larger proportion of space activities are undertaken directly by commercial operators, the space law regime will inevitably grapple with how to extend recognition and incorporate these actors into global governance processes (Dickey 2022). This will not be straightforward, not least because space companies operate complex transnational supply chains and customer relationships that often implicate multiple states as potential regulators. And the sheer proliferation of commercial actors argues against fully inclusive engagment. Private actors do have some avenues for directly contributing to governance mechanisms, particularly through the development of non-binding technical and operational standards at the International Telecommunications Union (ITU) (Jakhu and Pelton 2017, p. 35) and through private industry bodies like the Consortium for Execution of Rendezvous and Servicing Operations. But these entities lack direct international law-making authority. The commercialisation of space activites also challenges the current configuration of rights and responsibilities established by the OST and its emphasis on common benefit in outer space exploration. For example, does the prohibition of appropriation still permit the extraction minerals from celestial objects, and their subsequent sale on Earth, if there is no underlying assertion of ownership of the physical territory itself? In a related vein, there are growing concerns that the rapid expansion of satellite mega-constellations – most notably SpaceX’s Starlink constellation12 – will prevent other actors from accessing and using the most valuable orbital locations, representing a de facto form of appropriation in Low-Earth Orbit by first-movers (Boley and Byers 2021). Do commercial operators – or their state of registration – have an obligation to limit the size of their satellite networks given that Earth orbits are a shared and ultimately finite resource and we do not actually know their sustainable carrying capacity? Commercial human space travel also raises novel questions regarding who is encompassed Cris van Eijk has calculated that ‘the United States, Russia, and China have jurisdiction over 89% of all space objects, 72% of active satellites, and 91% of all orbital debris. The entire Global South controls 11.5% of active satellites; the US alone regulates 59%’ (van Eijk 2021, p. 4). 10 As of August 2022, 112 states are parties to the OST, while 100 states are members of UNCOPUOS. See https://​www​.unoosa​.org/​oosa/​en/​ourwork/​copuos/​members/​evolution​.html. 11 These obligations are further developed in the Liability Convention and Registration Convention. Intergovernmental organisations can also register spacecraft (Hobe et al 2017, p. 191). 12 As of August 2022, over half of all active satellites in orbit are part of SpaceX’s Starlink constellation (McDowell 2022). 9

Global constitutionalism and outer space governance  537 by space law. Should paying customers on short-duration space tourism trips be classified as astronauts, and thus ‘envoys of mankind’, or merely parties to a commercial transaction (like passengers on a conventional airliner)? Permanent human settlement beyond Earth will push these ambiguities further still. SpaceX, the most prominent proponent of interplanetary travel, harbours a distinctly libertarian perspective and rejects Earth-based legal jurisdiction over its intended human missions to Mars.13 Third, scholars like Cassandra Steer have persuasively argued that the OST’s gendered framing of its constituency as ‘mankind’, reinforces existing power structures that privilege ‘male biology and the male experience as the norm’ in space exploration (Steer 2021, p. 169). Given the enduring structural inequality in high-prestige sectors, it is unsurprising that women have been systematically under-represented in space sciences and engineering, human spaceflight programmes, and space law.14 Terminology is especially important in constitutional contexts where texts articulate grand aspirations and delineate boundaries of recognition. Language thus reflects, and shapes, social expectations and processes which in turn have tangible effects in limiting women’s access to everything from astronaut training and operational missions to biologically suitable microgravity toilets and spacesuits; this exclusion extends to the limited scientific literature examining the differential effects of gravity and radiation on female bodies (Gorman 2021). While by no means a panacea, adopting the neutral term ‘humankind’ would provide a more inclusive basis for imagining, describing and governing the future of space exploration (Steer 2021). Fourth, extra-terrestrial human settlement will deeply upend our established notions of sovereignty, political order and identity (Cockell 2015). In the nearer term, permanent settlements on the Moon will likely remain closely tethered to terrestrial political and economic structures. In the longer term, however, the extreme distances mean that for most travellers, interplanetary exploration will be a one-way trip. This fact challenges our existing notions of citizenship: for how long would they continue to feel allegiance to an Earth-bound government? In a matter of generations, environmental forces of radiation and low gravity would fundamentally alter our biological processes. At that point, space settlers may no longer regard themselves as ‘human’ beings at all, with rights and obligations stemming from Earth.

SITES OF LAW-MAKING, MANAGEMENT AND ENFORCEMENT In the face of these substantial challenges, space law lacks consolidated and, in many cases, even explicitly enumerated legislative, executive and judicial features that are found in other domains of international law. Most notably, the OST has no provision for regular meetings of the state parties to review the operation of the treaty, exchange information or address compliance issues. And while OST Article XV allows members to propose formal treaty amendments, this mechanism has not been utilised to date. Former Canadian diplomat Paul Meyer

13 SpaceX’s terms of service for its (separate) Starlink broadbank internet service state: ‘For [s]ervices provided on Mars, or in transit to Mars via Starship or other spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities.’ (SpaceX, no date, para. 10). This statement has no basis or standing in international law. 14 Note, for example, the still-common use of ‘manned’ and ‘unmanned’ to describe human crewed and robotic space missions, respectively.

538  Handbook on global constitutionalism has therefore warned of a systematic ‘neglect of the Outer Space Treaty by the very states that championed its creation’ (Meyer 2017). Instead, legislative functions are distributed among various fora with differing memberships and largely separate mandates. This substantive siloing is intentional, as the leading space powers have long insisted on a strict division of labour between ‘hard’ security and purportedly ‘softer’ issues involving the safe and sustainable uses of outer space. UNCOPUOS serves as the principal international venue for discussing scientific, technical and legal dimensions of outer space activities and thus partially fills the diplomatic void of the OST. UNCOPUOS is widely esteemed but limited to subjects relating to peaceful uses of outer space and thus excludes explicit consideration of the security dimensions of space operations. Multilateral negotiations relating to military space matters take place in the Conference on Disarmament (CD). Both of these bodies operate on the basis of consensus which has increased their legitimacy but also frequently impeded their diplomatic output. The ITU, a specialised UN agency representing 193 member states, is responsible for allocating radio frequencies and orbital slots and convening regular conferences where governance procedures and technical standards are adopted. Finally, the UNGA has been active in promoting space diplomacy on topics ranging from debris to arms control. While the UNGA lacks law-making authority, its outputs can reflect opinio juris that contribute to the development of customary international law (Cheng 1997, pp. 125–49). This fragmentation in the sites of normative development is mirrored in a notable absence of centralised executive and judicial functions within the core space institutions. Along with the lack of diplomatic meetings, the OST has no standing administration to manage the treaty’s day-to-day affairs. The UN Office of Outer Space Affairs (UNOOSA) acts as the secretariat to UNCOPUOS and assists the international community through extensive capacity-building, technical assistance and transparency functions. The UN Inter-Agency Meeting on Outer Space Activities (UN-Space) provides a further focal point within UNOOSA that brings together national regional space agencies for annual coordination meetings. Yet these bodies lack their own decision-making powers. As Scheuerman (Chapter 30 in this Handbook) asserts, ‘a viable global constitutional order requires effective legal sanctions’. The OST makes no mention of judicial remedies and the space regime enjoys no centralised court or legal expert body that can address constitutional questions relating to the interpretation and application of foundational norms or more specific subsidiary rules. And while the OST contains general injunctions towards cooperation and peaceful settlement of disputes, the treaty does not create new mechanisms for dispute resolution, verification or enforcement (Brisibe 2016). These lacunae can be traced to the concentration of material and diplomatic power in the early Space Age, when it was assumed that conflicts among the few spacefaring states could be managed bilaterally rather than via novel multilateral means (Tronchetti 2013, p. 47). This model of great power management is no longer sustainable in light of the proliferation of spacefaring actors and applications. Instead, these functions fall to existing global institutions. The incorporation of the UN Charter and general international law presumably grants jurisdiction over outer space activities to the International Court of Justice and international courts, under some circumstances. But these judicial avenues remain untested: to this point, states have not sought advisory or binding judgments concerning the legitimacy and legality of the use of force, environmental damage from space activities, or private property rights on celestial objects in international courts.

Global constitutionalism and outer space governance  539 Similarly, space-related disputes have not been addressed by the UN Security Council,15 or specialised institutions like the Liability Convention.16 As such, there is no single venue where affected actors can meet to address fundamental questions concerning space governance writ large. Some analysts have proposed amending the OST to expand its authority or creating a new overarching institution – such as an International Outer Space Authority – that could consolidate and expand these currently disparate and under-developed functions (Meyer 2017; Kealotswe-Matlou 2021). In the meantime, alternative institutional forms have emerged which are variously described as hybrid or polycentric modes of governance (Jakhu and Pelton 2017; Morin and Richard 2021). Outside the UN system, a myriad of multilateral institutions (e.g., Inter-Agency Debris Coordination Committee), industry consortia (e.g., Consortium for Execution of Rendezvous and Servicing Operations), and scientific bodies (e.g., Committee of Space Research) provide additional fora for information-sharing, dialogue, and standard-setting. These transnational responses are further supplemented by a rapidly growing range of national laws and regulatory bodies which have in effect localised the governance of key space activites like launch services and satellite operations at the domestic level. For example, the US Federal Aviation Administration (FAA) regulates US-registered space launch companies – including by conducting pre-flight environmental impact assessments – while the Federal Communications Commission (FCC) approves satellite deployments. The most developed legal scrutiny is therefore found in national courts. Competitor companies have sued the FCC in US federal courts in an – unsuccessful – attempt to overturn rulings which they perceived unfairly favoured SpaceX’s Starlink mega-constellation (Brodkin 2021). Similar domestic institutions are being developed in many states, including Luxembourg and the United Arab Emirates, suggesting a further decentralisation of outer space governance.

CONCLUSIONS Outer space is inextricably implicated in the social, economic, political and ethical dynamics that characterise relations within and between communities on Earth. At the same time, rapidly emerging opportunities for the exploration and utilisation of outer space promise to extend human life beyond our planet. This unique domain thus provides another setting in which to assess the extent of constitutional structures and practices in global affairs, and to reflect on their impact for tangible governance challenges. This chapter has suggested that outer space law constitutes a coherent but weakly institutionalised regime. While not reflecting a consciously designed constitutional system, space law does possess some discernible quasi-constitutional features. But as I have shown, the While OST Article III brings the UN Charter to bear in space matters, it does not explicitly mention the UNSC. The UNSC has not been called upon in (thus far limited) inter-state disputes, and there is still considerable ambiguity regarding the extent to which, and under what conditions, the Council’s Chapter VII enforcement powers would apply in the space domain (Hobe et al 2017, p. 282). 16 The Liability Convention (in Articles XIV–XX) allows for the creation of an independent Claims Commission to adjudicate inter-state disputes over liability and compensation from damages caused by space launch or operational accidents, in cases where agreement cannot be reached among the respective states. However, the treaty does not specify a means of enforcing the decisions of a Claims Commission. This mechanism has never been utilised. 15

540  Handbook on global constitutionalism emergence of space law at a time when only a select few states and companies could access space raises questions about its inclusivity and normative legitimacy. Human and robotic space exploration is thus defined by a series of inescapable tensions concerning the fundamental values that should govern outer space activities, the means of extending and enforcing these norms and rules, and the actors to be encompassed within this legal system. These challenges will only become more pronounced as the scope and tempo of outer space activities dramatically expands. Yet from a constitutional perspective, foundational legal documents are not expected to anticipate all potential scenarios; contestation is neither surprising nor necessarily harmful to a well-functioning legal and political system. Effective governance may therefore not be best achieved through the accumulation of more international law in the form of long-term multilateral negotiations to create a more comprehensive space treaty. Actors may instead be better served by reinforcing the relevance of existing principles and pursuing the gradual expansion of more specialised mechanisms. This can be done by directly invoking core OST provisions in disputes, developing norms and rules that address specific technical subjects, and encouraging the creation of national laws and regulatory frameworks in line with the overarching objectives contained in the OST.

REFERENCES Aganaba-Jeanty, T. (2016) ‘Space sustainability and the freedom of outer space’, Astropolitics, 14 (1), pp. 1–19. Aoki, S. (2016) ‘Law and military uses of outer space’, in R.S. Jakhu and P.S. Dempsey (eds), Routledge Handbook of Space Law. Abingdon, Oxon: Routledge, pp. 197–224. Asiyanbola, O.A. et al (2021) ‘Toward African space autonomy: Developmental framework and incorporated synergies’, New Space, 9 (1), pp. 49–62. Azcárate Ortega, A. (2021) Placement of Weapons in Outer Space: The Dichotomy between Word and Deed, Lawfare. Available at: https://​www​.lawfareblog​.com/​placement​-weapons​-outer​-space​ -dichotomy​-between​-word​-and​-deed (Accessed 12 March 2021). Blount, P.J. (2021) ‘Peaceful purposes for the benefit of all mankind: The ethical foundations of space security’, in C. Steer and M. Hersch (eds), War and Peace in Outer Space: Law, Policy, and Ethics. Oxford: Oxford University Press, pp. 109–122. Boley, A.C. and M. Byers (2021) ‘Satellite mega-constellations create risks in Low Earth Orbit, the atmosphere and on Earth’, Scientific Reports, 11 (1), p. 10642. Brazil et al (1976) ‘Declaration of the First Meeting of Equitorial Countries’. Available at: http://​www​ .root​.ps/​download/​ASM/​dec​_bogota​.pdf (Accessed 3 February 2022). Brisibe, T. (2016) ‘Settlement of disputes and resolutions of conflicts’, in R.S. Jakhu and P.S. Dempsey (eds), Routledge Handbook of Space Law. Abingdon, Oxon: Routledge, pp. 90–106. Brodkin, J. (2021) Judges reject Viasat’s plea to stop SpaceX Starlink satellite launches, Ars Technica. Available at: https://​arstechnica​.com/​tech​-policy/​2021/​07/​spacex​-wins​-court​-ruling​-that​-lets​-it​-continue​ -launching​-starlink​-satellites/​(Accessed 2 February 2022). Cheng, B. (1997) Studies in International Space Law. Oxford: Clarendon Press. Cockell, C.S. (ed.) (2015) Human Governance beyond Earth: Implications for Freedom. Cham, Switzerland: Springer. Cross, M.K.D. (2019) ‘The social construction of the space race: Then and now’, International Affairs, 95 (6), pp. 1403–21. Dickey, R. (2022) Commercial Normentum: Space Security Challenges, Commercial Actors, and Norms csps​ .aerospace​ .org/​ of Behavior. Washington, DC: Aerospace Corporation. Available at: https://​ papers/​commercial​-normentum​-space​-security​-challenges​-commercial​-actors​-and​-norms​-behavior (Accessed 26 August 2022).

Global constitutionalism and outer space governance  541 van Eijk, C. (2021) ‘Unstealing the sky: Third World equity in the orbital commons’. Available at: https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3909536 (Accessed 24 August 2021). Gorman, A. (2021) ‘Moonwalking: When other worlds belong to women’, Griffith Review [Preprint], (74). Available at: https://​www​.griffithreview​.com/​articles/​moonwalking/​ (Accessed 4 November 2021). Hobe, S., B. Schmidt-Tedd and K.-U. Schrogl (eds) (2017) Cologne Commentary on Space Law – Outer Space Treaty. Berlin: Berliner Wissenschafts-Verlag. Jakhu, R.S. and P.S. Dempsey (eds) (2016) Routledge Handbook of Space Law. Abingdon, Oxon: Routledge. Jakhu, R.S. and J.N. Pelton (eds) (2017) Global Space Governance: An International Study. Cham, Switzerland: Springer International Publishing. Kealotswe-Matlou, I. (2021) ‘The rule of law in outer space: A call for an international outer space authority’, in C. Steer and M. Hersch (eds), War and Peace in Outer Space: Law, Policy, and Ethics. Oxford: Oxford University Press, pp. 91–106. Larsen, P.B. (2018) ‘Outer space arms control: Can the USA, Russia and China make this happen’, Journal of Conflict and Security Law, 23 (1), pp. 137–59. Masson-Zwaan, T. and R. Cassar (2019) ‘The peaceful uses of outer space’, in S. Chesterman, D.M. Malone and S. Villalpando (eds), The Oxford Handbook of United Nations Treaties. Oxford: Oxford University Press, pp. 181–200. McDowell, J. (2022) Starlink Statistics. Available at: https://​planet4589​.org/​space/​stats/​star/​starstats​ .html (Accessed 26 August 2022). Meyer, P. (2017) The Outer Space Treaty at 50: An Enduring Basis For Cooperative Security, The Space Review. Available at: http://​www​.thespacereview​.com/​article/​3335/​1 (Accessed 2 October 2017). Morin, J.-F. and B. Richard (2021) ‘Astro-environmentalism: Towards a polycentric governance of space debris’, Global Policy, 12 (4), pp. 568–73. Roulette, J. (2021) ‘More than 600 human beings have now been to space’, The New York Times, 11 November. Available at: https://​www​.nytimes​.com/​2021/​11/​10/​science/​600​-astronauts​-space​.html (Accessed 20 January 2022). SpaceX (no date) ‘Starlink pre-order agreement’. Available at: https://​www​.starlink​.com/​legal/​terms​-of​ -service​-preorder (Accessed 27 January 2022). Steer, C. (2021) ‘“The Province of all Humankind” – A feminist analysis of space law’, in M. de Zwart and S. Henderson (eds), Commercial and Military Uses of Outer Space. Singapore: Springer Nature, pp. 169–88. Tronchetti, F. (2013) Fundamentals of Space Law and Policy. New York: Springer. Union of Concerned Scientists (2022) UCS Satellite Database. Available at: https://​www​.ucsusa​.org/​ resources/​satellite​-database (Accessed 26 August 2022). United Nations General Assembly (1966) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Available at: https://​www​.unoosa​.org/​oosa/​en/​ourwork/​spacelaw/​treaties/​outerspacetreaty​.html (Accessed 15 September 2021). Weeden, B. and V. Samson (2022) Global Counterspace Capabilities: An Open Source Assessment. Washington, DC: Secure World Foundation. Available at: https://​swfound​.org/​media/​207350/​swf​ _global​_counterspace​_capabilities​_2022​_rev2​.pdf (Accessed 4 May 2022).

38. The political economy of global constitutionalism Christine Schwöbel-Patel1

INTRODUCTION Political economy and global constitutionalism tend to be thought of as disconnected. The relationship between the market and the state, the issue of the distribution of wealth, and the question of the prioritisation of market-related interests over others do not feature prominently in the current debate on global constitutionalism.2 This is notwithstanding the literature on the constitutionalising of the World Trade Organization (WTO), which is, as I argue below, largely limited to legal-technical over structural questions. My point of departure for this analysis is that the political economy of global constitutionalism, as a matter of distributive justice, requires attention and, moreover, that the dearth of outlets for talking political economy tells us something important about the naturalised assumptions engrained in the debate on global constitutionalism. I begin by exploring potential connections between political economy and global constitutionalism in the existing discussions. The already mentioned constitutionalisation of the WTO and the constitutionalisation of socio-economic rights are discussed as possible outlets for ‘talking’ political economy. I argue that these sites of enquiry do not provide a satisfying entry into questions on the relationship between the market, power, and the law. At the centre of this analysis is the claim that an assumed division between the public and private spheres, what is known as the public–private dichotomy, is key to understanding the limited engagements of political economy with global constitutionalism. I demonstrate that the division between the public and the private, which has historically been enshrined in domestic constitutions, has been extrapolated to the global sphere in debates on global constitutionalism. In its more problematic register, the public–private dichotomy is mapped onto the division between the political and the economy. The economy is constructed to be kept apart from the political so that it can unfold unchecked, rendering the private sphere effectively apolitical. Two consequences of constitutionalism as understood in a separation between the public and private are highlighted: (1) constitutionalism has the potential to ‘lock in’ neoliberal capitalism and (2) constitutionalism has been mobilised to serve the interests of the Global North vis-à-vis the Global South in a neocolonial register. A political economy perspective on global constitutionalism therefore exposes the potential for a naturalisation of its neoliberal and neocolonial features.

1 Many thanks to Greg Messenger and Mavluda Sattorova for conversations, comments on earlier drafts and valuable pointers. 2 For important exceptions, largely in the scope of transnational law, see Kolja Möller (2015) and Peer Zumbansen (2011).

542

The political economy of global constitutionalism  543 Following on from this, and in a dystopic register, I consider whether neoliberal and neocolonial constitutionalism in the global sphere (as a description of a globally ­constituting process) is already apparent in the global economy. The Transatlantic Trade and Investment Partnership (TTIP), and any of its regional counterparts for that matter, is considered as symptomatic of a neoliberal and neocolonial constitutionalism of the global economy. TTIP, a trade and investment agreement which was negotiated largely in secret, is shown to unfold its constitutionalising potential through a problematic depoliticisation of the economy, dependent on the understanding of a strict division between the public and the private. Negotiations for TTIP ended in 2016 and were declared obsolete and no longer relevant in an EU council decision of 2019. Mega-regionals marked a particular time in trade history, which arguably has been followed by a greater turn to nationalism. These more recent trends notwithstanding, TTIP was as much an indication of sweeping liberalisation as it was of resistance to such liberalisation. It therefore continues to serve as a fascinating example of the distributive aspects of constitutionalisation on a global scale.

FINDING POLITICAL ECONOMY IN GLOBAL CONSTITUTIONALISM In 2013, David Kennedy claimed that the central questions of our time are not political questions (regarding questions to be addressed by governments alone) and they are not economic questions (regarding questions to be addressed by the operations of markets alone), but rather they concern questions which can best be addressed by ‘thinking of politics and economics as intertwined projects and close collaborators in the distribution of political authority and economic reward’ (Kennedy 2013, pp. 7–8). Critical questions pertaining to the distribution of political authority and economic reward as they apply to global constitutionalism may be the following: (1) Is the globalising and constitutionalising of certain norms a means of privileging a particular political and economic elite? (2) Is the assumed division between the public and private spheres in constitutionalism problematic, particularly if this concomitantly means the depoliticisation of the economy? (3) If a particular (political and economic) elite benefits from constitutionalisation of this kind, then who loses out? (4) What and who is left uncontested in a depoliticised economy? These questions have, to date, largely remained un(der)explored in debates on (global) constitutionalism; yet their importance appears paramount. Despite the relative silence on questions of political economy, there are many and varied aspects to the debate on global constitutionalism. The debate takes place across several disciplines (including international law, international relations, political science and political theory), across several different scales of normativity (from claims that some norms are global constitutional norms to claims of pluralism and a loose formalism), across different geographies, and different levels of optimism and pessimism. Notwithstanding these variations, there are also identifiable trends in the debate. It is a debate largely among international law academics; it is framed in an increasingly procedural rather than substantive register; it is largely European (with a particular interest from German academics); and is going through a rather pessimistic phase.3 These trends are important from a political economy perspective In an editorial in March 2015, the editors of the journal Global Constitutionalism ask whether elements of global constitutionalism ‘have peaked or even entered a period of decline’ (Dunoff et al. 2015, p. 1). 3

544  Handbook on global constitutionalism since they may reveal some of the assumptions and biases inherent in the debate on global constitutionalism. As already noted, a feature of the debate on global constitutionalism is the lack of political economy analysis. Why is this? There are two spaces which may provide some scope for ‘finding’ political economy in global constitutionalism. The first is in the debate on the constitutionalising of the WTO and the second is in socio-economic rights. It may seem puzzling to assert a neglect of political economy in debates on global constitutionalism given that much of the fascination with questions of international constitutionalism arguably began with a scholarly discussion on the constitutionalisation of the WTO. In the early 2000s, several scholars were discussing the question whether the legalisation of the WTO (particularly given its highly legalised dispute settlement system) meant–should mean–should not mean the constitutionalisation of the WTO and the economic order more generally (Petersmann 1997, 2006; Howse and Nicolaidis 2001; Walker 2001). Despite this clear connection between constitutionalism and political economy, the experts of international economic law have been described as ‘overwhelmingly agnostic’ about globalisation and liberalisation (Cass 2005, p. 72). Bar some important exceptions (see Trachtman 2009; Rolland 2012), international economic lawyers have a reputation for viewing the free market and other features of neoliberalism as fact. This literature and practice is, perhaps as a consequence of taken-for-granted neoliberalism, concerned with the constitutionalisation of the trade regime as a distinct regime and not of the international legal order as a whole (reincarnations of the debate make this explicit, for example, Peters et al. 2011). In response to this fragmented understanding of constitutionalism and neoliberalism, Kolja Möller described the international trade system as radiating into the international community and consequently constitutionalising on a global scale. The fragmented regime, according to Möller, has an urge for expansionism into its more peripheral legal, political and economic areas. He argues that the colonisation of the trade system is leading to a globally constitutionalised liberalisation and financialisation (Möller 2015, p. 276). This seems like a plausible way of explaining the institutionalisation of the neoliberal order. To me it appears that a neoliberal logic has so permeated thinking on national, international and transnational levels that we cannot separate it as pertaining to a commercial or trade sphere. The neoliberal order and international law are at present so intimately entwined that they constitute and re-constitute one another. The neoliberal order has, since the end of the Cold War, become the only true contender for global reach and owing to this monopoly on the institutions, regulations and imagination has become naturalised as the only way of ordering globally interconnected affairs. As David Harvey states, neoliberalism ‘has become incorporated into the common-sense way many of us interpret, live in, and understand the world’ (Harvey 2007, p. 3). The WTO is therefore to be understood as both a product and a constituting factor of a neoliberal order. The prevailing narrative on fragmentation, however, forecloses this structural analysis, as it insists on understanding international economic law as a distinct field of enquiry. Although debates of the constitutionalisation of the WTO therefore provide ample opportunity for ‘finding’ political economy, it is largely missing in the mainstream debate. Another possible connecting language between global constitutionalism and political economy lies in an analysis of socio-economic rights. Socio-economic rights would appear to be an appropriate platform for engaging questions of economic inequality, redistribution of wealth, and institutionalised privileging of civil and political rights in global constitutionalism. Social, economic and cultural rights are regularly described as ‘positive’ rights (as opposed to

The political economy of global constitutionalism  545 civil and political ‘negative’ rights) since they impose obligations, or protective duties, on the state. In the constitutional debate, socio-economic rights have been part of the conversation particularly since their inclusion in the South African Constitution. An interesting impetus for global constitutionalism and socio-economic rights is currently coming from the Global South. Drawing attention to some of the deficits and limitations of ‘older constitutions’ from the Global North, David Bilchitz speaks of distributive justice as ‘an ideal’ engrained in the constitutions of India, South Africa and Colombia, which could influence global constitutionalism in the future (Bilchitz 2013, p. 42). However, the shadow of non-justiciability (and indeterminacy) looms large over socio-economic rights and constitutionalism. The resource question is regularly invoked.4 The general critique of socio-economic rights in practice is that there is at most a ‘discursive sensitisation’ in trade law debates (Moyn 2014, 166) and that they are more generally a ‘powerless companion’ to neoliberalism (Moyn 2014). Such resignation towards socio-economic rights would appear to prevent a structural critique of the role socio-economic rights discourse plays in constructing and sustaining neoliberalism. Ultimately, the mapping of civil and political rights onto the Global North and social, economic and cultural rights onto the Global South also prevents a more in-depth analysis of neoliberalism as a global phenomenon. Neither the debate on the constitutionalisation of the WTO nor on the constitutionalisation of socio-economic rights has offered a satisfying impetus for ‘finding’ political economy in global constitutionalism.

THE PUBLIC–PRIVATE DIVIDE IN (GLOBAL) CONSTITUTIONALISM In order to understand the political economy of global constitutionalism, I suggest that the public–private divide, often also referred to as a ‘dichotomy’, is a crucial analytic. In order to understand the public–private divide and its consequences, this section looks at constitutionalism from a historical perspective. Historically, constitutionalism has had two compromising features, which are often ignored in light of the overwhelming constitutional rhetoric of freedom and rights: constitutionalism has historically enabled the ‘locking in’ of capitalist principles5 and constitutionalism has historically been mobilised as a form of legalisation of colonialism. These two features are relevant for the political economy of global constitutionalism in that it shows us that constitutionalism when transcending the domestic sphere has the potential to create and re-inscribe divisions between a political and economic elite and the politically and economically deprived and silenced. Only a sketching out of these historical connections is possible here; its purpose is to shift the emphasis from the predominant freedom and rights associations of constitutionalism to a sensitivity of possible connections with neoliberalism and neocolonialism. The public–private divide is shown to inhabit a crucial role in historically facilitating neoliberal capitalism and colonial power relations. Neoliberalism encapsulates the division of the public and private in the following way: in neoliberalism the division is embraced in order to promote policies aimed at keeping the 4 See for example the South African Constitutional Court’s first ruling on positive rights (here medical treatment) in Soobramoney v Minister of Health (KwaZulu-Natal) (1997) ZACC 17. 5 Stephen Gill (2008) refers to the ‘locking in’ of neo-liberal reforms in the constitutional ­revisions of the 1990s.

546  Handbook on global constitutionalism market separate from and protected from state intervention. Neoliberal doctrine, as devised after World War II among others by political philosopher Friedrich von Hayek and economist Milton Friedman, foregrounds personal freedom and fiercely opposes intervention of the state in the market, unless such intervention protects the market. The theory of the ‘invisible hand’, often attributed to Adam Smith, is, in a neoliberal understanding, often regarded as the best device for social benefits. According to this reasoning, an individual’s self-interest has some unintended social benefits such as the redistribution of goods. The lack of state involvement in the market, other than to protect its freedom, and the metaphor of the invisible hand create the problematic fiction that law is not present in this sphere (Möller 2015, p. 275) – and also that it is not needed in this sphere for the purpose of social justice. The private sphere of the economy is taken out of state control, and consequently also largely out of democratic control. The private sphere, in the hands of individuals and corporations, is consequently depoliticised. It merits emphasising here that the practices of the economic super-powers are not simply about all-round liberalisation. Indeed, some industries of the economic heavyweights are (notoriously) protected from, rather than exposed to, the free market and global competition.6 Constitutionalism has historically entailed a public–private division, arguably providing fruitful ground for (neoliberal) capitalism to flourish. Constitutionalism, as it emerged from the British Glorious Revolution of 1668 and the French Revolution of 1789 imposed restraints upon the absolute power of the monarch relative. This restraint was exercised by merchants and the middle classes. Stephen Gill has made explicit how struggles between the ancien régime and this bourgeois class which led in industrial and commercial progress engaged a constitutionalism associated with the overthrowing of constraints on the accumulation of capital (Gill 1998, pp. 27–8). Constitutionalism as a mechanism to ensure capital accumulation and the free movement of capital was born. Gill explains how this ‘old’ constitutionalism entered a phase of ‘progressive constitutionalism’ after World War II. New government intervention meant limitations on capital mobility – as required by post-war reconstruction. At the same time, a new economy was emerging which gave more weight to workers as producers and, crucially, as consumers. The newly emerging idea of a welfare state meant that public authority controlled and channelled the processes of economic liberalisation and redistribution (Gill 1998, pp. 29, 30). Post-1989, that is, with the end of the Cold War, free trade became increasingly pronounced as liberalisation was increasingly equated with freedom. This ties in with the widely held assumption that individual freedoms are guaranteed by freedom of the market and of trade (Harvey 2007, p. 7). Through a constitutional lens, this was most evident in the liberalisation of the former Eastern bloc. The new constitutions of formerly socialist or communist states set out the legal protection of property rights, allowing for a global neoliberal economy to configure. The contemporary debate on global constitutionalism, although it may have roots going back many centuries, began in the late 1990s. It coincided with the height of expansionism of liberalism as a political and as an economic doctrine. Liberalism as a political doctrine understands the protection and enhancement of the freedom of the individual to be the central issue of politics. Liberalism as an economic doctrine takes free markets to be the central issue of global economics. The political economy which has been prevalent ever since is the Examples of US or French agriculture come to mind immediately. Economist Ha-Joon Chang has pointed out that developed countries became rich by protectionism and are now kicking away the ladder for developing countries by demanding the implementation of free trade policies (Chang 2002). 6

The political economy of global constitutionalism  547 pursuit of individual freedom through free markets. The neoliberal order is associated with an understanding of market logic extending into all social and public spaces. The deep commitments to liberalism, and to an extent also neoliberalism, can be found in the dominant debate on global constitutionalism. I have argued elsewhere that the predominant global constitutionalism projects from an international legal perspective share some important properties in the privileging of: (1) the limitation of power, (2) the institutionalisation of power, (3) social idealism (meaning an idea for the future based on societal values), (4) the standard-setting capacity of constitutions in the sense of a systematisation of law, and (5) the recognition of individual rights. Together, these features can further be condensed to a general liberal democratic idea of global constitutionalism as the pre-eminent interpretation of global constitutionalism among international lawyers today (Schwöbel 2011). A further way of describing and categorising these features is through the lens of the public–private law divide. Global constitutional features all form part of public law, that is, the area of law which is regulated by the state and concerns relations between the state and individuals. ‘Limitation of power’ is often found in ideas of the rule of law and associated checks and balances mechanisms. The ‘institutionalisation of power’ provides for power to be vested in public institutions which are organised along hierarchies of competence. ‘Social idealism’ concerns common values; even if these values are pluralism and difference, they are understood as defined in public law because they concern society as a whole. The hierarchical, pyramid-style, nature of public law also provides for the ‘systematisation of law’ and for the articulation of ‘individual rights’ by a centralised power which is thought to be accountable to the people. Private law, as in the law between two private actors, is generally believed to be outside the scope of global constitutional debates. As will be shown, this separation of the public and the private is mapped across a divide of the political and the economy. The institutionalisation of the separation of the public and private at the international level can be demonstrated with reference to the WTO. ‘By regulating one class of actor (public) but focusing on the outcomes for another (private), WTO law is required to engage with the distinction between the public and the private on a continual basis’ (Messenger 2016, p. 55). World Trade Organization law, as multilateral international law, applies to those states and customs unions that have signed up to the organisation. The law created here, ‘the global rules of trade’,7 is designed to benefit private actors. As the WTO Appellate Body has emphasised, the WTO’s concern is ‘merely the governmental intervention that affects the conditions under which like goods, domestic and imported, compete in the market within a Member’s territory’.8 The role of the public (the state) is therefore to guarantee expedient conditions for the economy. Trading relationships of and with China exemplify how the public (the political) has been separated strictly from the private (the economy) (Schwöbel-Patel 2017). Despite continuous reports of disappearances and persecution of political dissidents as well as territorial disputes, the People’s Republic of China remains a trading and investment partner because the public (the political) is factored out of what are thought to be concerns of the economic sphere. This reinforces Claire Cutler’s argument in Private Power and Global Authority that interna-



See https://​www​.wto​.org/​. Korea – Measures Affecting Imports of Fresh, Chilled, and Frozen Beef, Report of the Appellate Body, WT/DS161/AB/R-WT/DS169/AB/R (11 December 2000) para. 149 (cited in Messenger 2016, p. 56). 7 8

548  Handbook on global constitutionalism tional law and neoliberalism are not only mutually reinforcing but the former is effectively rendering private economic activity ‘apolitical’ and neutral (Cutler 2003). Neoliberalism and constitutionalism both assume a public–private divide which is important for thinking about global constitutionalism in terms of political economy. How does colonialism come into the picture? As we know, not least from Rosa Luxemburg, capitalism (as the practices connected to the accumulation of capital) and imperialism (as the exercise of power over foreign territories) are intimately entwined (Luxemburg, 2003 [1913]). European colonialism, practised primarily by the United Kingdom, the Netherlands, Spain, France and Portugal, began around the late fifteenth century. Expansionism into Africa, Asia and the Americas was largely for economic reasons – to provide the European empires with the rich resources of their colonies. That this was a bloody episode in European history is undeniable. The work of Anthony Anghie and Martti Koskenniemi, among others, has shown how international law was a central feature to legitimising the unequal relationships between the colonial powers and the colonies. In particular, Anghie compellingly argues how the notion of sovereignty played a crucial role in sustaining political-economic power over the colonised. Invocations of ‘sovereign’ and ‘not sovereign’ helped institutionalise and naturalise a division between what was considered civilised and what was considered uncivilised (Anghie 2005, see also Koskenniemi 2001; Rajagopal 2003; Pahuja 2011). International lawyers were far from ignorant of the imperial expansion; rather, they helped legitimise it. For scholars approaching international legal thought from a Third World Approaches to International Law (TWAIL) perspective, it is important to emphasise that the discipline and its central principles were not only constituted by asymmetries of power between colonial powers and colonial subjects, but continue to create and naturalise these asymmetries. International law, as the discipline in which global constitutionalism feels most at home, is implicated in continued colonial and neocolonial relationships. Dylan Lino introduces domestic constitutionalism into the historical analysis of colonialism. Lino draws attention to the colonial past of (British) domestic constitutional principles and traditions, thereby revealing a close relationship, albeit complex, between (British) constitutionalism and colonialism. This is relevant to global constitutionalism as domestic constitutional ideas, particularly of the constitutions of the Great Powers, are extrapolated onto the international. Lino argues that in the latter half of the nineteenth century, in the ‘age of empire’, British constitutional scholars increasingly envisioned the British Empire as a constitutional order and project (Lino 2016). Employing in particular the work of Albert Venn Dicey, English constitutional scholar and author of the canon Introduction to the Study of the Law of the Constitution, the imperial dimension of constitutionalism is drawn out. Spurred in part by inter-imperial industrial and military competition (Lino 2016 cites here Bell 2007 and Kennedy 1987), and a waning faith in democracy,9 Dicey arguably saw colonialism as representing ‘a new form of the undying belief in progress’ (An Observer [AV Dicey] 1901, p. 203, as cited in Lino 2016, p. 7). With this came an imperial shift in British constitutional thinking (Lino 2016). Domestic constitutionalism, which acts as a significant impetus for global constitutionalism, is in this narrative historically implicated in imperialism. In so far as there is a continuation of the assumption of the public–private divide, there are therefore grounds to suspect global constitutionalism as being a facilitator of neoliberalism 9 The worry about democracy was closely linked with a worry about socialism and, and more importantly, communism.

The political economy of global constitutionalism  549 and neocolonialism. Not only do the predominant visions of global constitutionalism take a public–private divide for granted (as displayed above), and therefore provide fertile ground for the rendering of private economic activity apolitical; but global constitutionalism in its self-understanding as universal also sits comfortably in a progress narrative associated with colonialism and neocolonialism. The likeness with the imperial constitutionalism of the British Empire and global constitutionalism extends to both being unwritten. This kind of functional rather than formal thinking10 is opportune for extending ideas of governing and progress to those deemed to be ‘less governed’ and ‘less progressive’. Global constitutionalism is, from a formalist perspective, a potential tool of colonialism and neocolonialism, standing in opposition to the more common narrative of global constitutionalism as being a beacon for rights and freedom. What happens if we apply this formalist perspective to material conditions?

THE TTIP AS GLOBAL CONSTITUTIONALISM? A historical political economy perspective on global constitutionalism has highlighted some taken-for-granted and hidden aspects of a global constitutional project. An important aspect of the linkages between constitutionalism, neoliberalism and neocolonialism has been shown to lie in the public–private divide. If we assume that there are some continuations in these compromising features of constitutionalism, what might this linkage look like? Scholars of global constitutionalism largely claim to be engaging in both a descriptive as well as a normative project. My worry is that the idealism behind the normative project is blinding us to some of the real constitutional impulses which would be part of a descriptive project. In other words, the utopia is diverting attention from the lived dystopia. If we consider constitutionalism as a project of integration and of convergence from a descriptive perspective, it is striking how much more integrated the global economy is vis-à-vis its rights landscape. One can plausibly say that there is larger consensus on how to conduct the global economy – by states, organisations, corporations and individuals alike – than there is on rights protection. The global capitalist economy, which extends across all continents and most cultures is therefore my point of departure for a descriptive (and dystopian) analytic. The TTIP is employed as an example of a moment in recent history when the constitutionalising of the global market economy reached a neocolonial and neoliberal climax.11 The TTIP was a set of trade and investment negotiations between the US and the EU. The proposals were not an isolated phenomenon; similar trade agreements were signed between the US and Pacific states in the Trans-Pacific Partnership (TPP) and between the EU and Canada in the Comprehensive Economic and Trade Agreement (CETA).12 Any one of these agreements could have served as an example of a constitutionalising global economy. While

Lino (2016) says this about the British constitution, Trachtman (2009) says this about global constitutionalism. 11 For the purposes of this argument, I am not distinguishing here between ‘big C’ constitutionalism or ‘small c’ constitutionalism. I am also not going to go into detail about ‘constitution’, ‘constitutionalism’ or ‘constitutionalisation’ – all of which have been covered at length. 12 Although much has been made of the secrecy, it is likely to follow the same principles as CETA, which has already been signed and is therefore publicly available. 10

550  Handbook on global constitutionalism much of the debate was side-tracked by a fear of chlorinated chicken and American parmesan,13 there were much more pressing concerns about this partnership. The TTIP agreement was one of a so-called ‘new generation’ of agreements which combined both trade law and investment law. The agreement concerned the minimising of regulatory barriers to trade, the convergence of regulatory standards, and the protection of foreign investment. Given investor property rights and assets were the protected interests, investors, that is, large corporations, had the most to gain from such partnerships. The scope of the agreement was extremely broad, ranging from health care to food standards to environmental standards. What is problematic about this broadness is that regulatory standards are recast from standards concerning the public good to measures which hinder competitiveness. Crucially, TTIP, like other mega-regionals, presumed liberalisation – those areas which were not liberalised were set out in explicit reservations.14 The marketisation of all aspects of social life is a reality; what was novel about the TTIP was the degree of ‘deep liberalisation’ sought (De Ville and Siles-Brügge 2016). One of the most controversial aspects of the agreement was the investor state dispute settlement (ISDS) system, described as ‘corporate courts’ or ‘secret courts’.15 This aspect of the trade and investment agreement set out that corporations can sue governments under the settlement system if one of the investment obligations had been violated. A striking example of the way in which such trade arbitration had functioned in the past is the Metaclad case, a case brought by the US Metaclad Corporation against the Mexican government.16 The relevant local authorities in Mexico had denied landfill management company, Metaclad, a building permit on a hazardous waste landfill because an environmental audit had revealed severe threats to the local water supply. Metaclad was forced to cease operating the site. It subsequently successfully sued the Mexican government for damages, and was awarded US$16.7 million by an arbitration tribunal. The tribunal understood this to constitute regulatory expropriation, an effect deemed ‘equivalent’ to direct expropriation which is understood to include effects on companies’ future profits. Further concerns about the ISDS include the fact that arbitrators can be appointed by corporations (providing more strength to corporate power) and that such tribunals do not have to meet regular transparency requirements (providing less democratic control). From a constitutionalisation angle, the proposed dispute settlement system was interesting since it indicated a clear attempt to restrain the primacy of politics in favour of private enterprise (De Ville and Siles-Brügge 2016, p. 11), and therefore the intent to ‘lock in’ a neoliberal standard.17 The ‘Chlorhühnchen’ became the symbol for German resistance to TTIP, see, for example, Der Spiegel (2013) and The Guardian (2014). 14 In the area of services, this is a dramatic departure from The General Agreement on Trade in Services (GATS), which was (alongside the General Agreement on Tariffs and Trade (GATT)) negotiated as part of the Uruguay Round. In GATS the provision was the reverse: those areas which were to be open to liberalisation were set out explicitly. Many thanks to Greg Messenger for pointing this out. 15 Civil society organisations have been central in providing information on the negotiations and on lobbying key stakeholders. See War on Want at http://​waronwant​.org/​what​-ttip or at Global Justice Now at http://​www​.globaljustice​.org​.uk/​tags/​ttip. 16 The Award can be found at Metaclad Corporation v. The United Mexican States, ICSID-ARB(AF)/97/1 (30 August 2000). 17 The alternative, proposed by the European Commission in November 2015, is a permanent investment court system. It has been proposed in particular to address problems of transparency and independence of arbitrators. Although it may be a step forward in transparency, it would be a further step into standardisation discussed below. 13

The political economy of global constitutionalism  551 The continuation of neocolonial interests in trade and investment agreements lies in the traditionally unequal benefits between capital-exporting countries (those of the Global North) and capital-importing countries (those of the Global South). Since the first modern bilateral investment treaty (BIT), concluded between Germany and Pakistan in 1959, foreign investment in countries of the Global South has been enabled and capital has been allowed to flow freely into new territories with rich resources and cheap labour. At the same time, the capital-importing country was made to believe that foreign investment was crucial for development – a narrative which had strong backing from the World Bank and the International Monetary Fund (IMF).18 However, the outcome was often, as Mattias Kumm states, ‘an act of collusion between often corrupt and despotic governments in developing countries and Western states serving the interests of their corporate constituencies’ (Kumm 2015, p. 3).19 The neocolonial flavour with the TTIP – a trade agreement between developed states – lies first in the strengthening of big business, which has historically been exploitative of countries rich in natural resources, and second the standardisation set through the agreement.20 One of the great myths of multinational and transnational corporations which rely on free-flowing capital is that they create jobs and ultimately development and prosperity. The Washington Post, for example, stated about the TPP: ‘On balance, though, free-flowing capital creates more jobs and wealth than it destroys. The TPP would not only increase economic activity but also enhance geopolitical ties between the United States and its East Asian allies, especially Japan.’21 There is insufficient space to vitiate this claim in depth, suffice to say that it is widely acknowledged by international organisations,22 civil society organisations23 and economists alike,24 that neoliberalism is experiencing a crisis. Not only did the global financial crisis expose the weaknesses of a global neoliberal capitalist model, more importantly, neoliberalism is causing deep income inequalities – as acknowledged by the IMF itself (Ostry et al. 2016). The rich are becoming richer and the poor are becoming poorer. Arguably, what started as a financial crisis has spilled over into conflict and social upheaval.25 The damage done by oil giant Shell in the Niger Delta in Nigeria or Chevron in Ecuador’s Amazon basin, for example, as regards labour standards, environmental standards and income standards speaks volumes for the damage done by big business.26

18 Alternatively, as Mavluda Sattorova has recently empirically investigated, government officials in capital-importing countries (such as Turkey) were largely ‘unaware of the scope and implications of such treaties’ (Sattorova 2016, p. 58). 19 See interesting moments of resistance to the investment protection regimes, for example, by Bolivia and Ecuador (Sattorova 2016, pp. 53–80). 20 Mattias Kumm states, ‘investment protection regimes could be described as continuation of western imperialism under modern conditions’ (Kumm 2015, p. 6). 21 Washington Post (2015). 22 OECD (2015). 23 ‘An Economy for the 1%. How privilege and power in the economy drive extreme inequality and how this can be stopped’, 18 January 2016, Oxfam report on structural inequalities at http://​policy​ -practice​.oxfam​.org​.uk/​publications/​an​-economy​-for​-the​-1​-how​-privilege​-and​-power​-in​-the​-economy​ -drive​-extreme​-inequ​-592643. 24 Piketty’s (2014) book was particularly influential. 25 For an interesting short video overview, see Mason (2015). 26 Particularly in the Niger Delta in Nigeria, Shell has done much damage. Often corporate damage is not exposed because court cases are settled in order to prevent transparency. However, the case of Kiobel revealed some of the poor labour and environmental standards employed or endorsed by Shell.

552  Handbook on global constitutionalism Standardisation is a major goal of investment agreements such as the TTIP. This type of standardisation on how to manage the economy, particularly through liberalisation, sets a path for developing states to mimic mythical paths to development as promoted by wealthy states (Schneiderman 2008).27 Much concern of activist resistance to TTIP was around the fact that the negotiations for the TTIP were largely held in secret and therefore not open to democratic contestation. This highly separated and depoliticised activity of the private sphere is symptomatic of the strict separation between the private and public spheres described as one of the problematic aspects of constitutionalism above.28 Despite the declared obsolete nature of the TTIP negotiations (and the fact that Brexit would necessitate new negotiations anyhow), it is worth noting that a dystopia of a constitutionalised separation of the public and private sphere may already be upon us in the global economy. If we adopt a descriptive approach to global constitutionalism, we may find that the global economy is already constitutionalising at the same time as the Enlightenment project of global constitutionalism declares rights and freedoms as central. By insisting on a public–private division within the global constitutional debate, a further closing in and locking in of neoliberal and neocolonial global constitutionalism may (unwittingly) be made feasible.

CONCLUSION In the above, I set out the relevance of a political economy perspective on global constitutionalism. Constitutionalism has been exposed as a project which historically has locked in neoliberalism and has facilitated (neo)colonialism. These limitations of constitutionalism are important for the global constitutional debate as ideas from domestic constitutionalism tend to be extrapolated to the international sphere. The divide between the public and private is key to understanding the problems associated with constitutionalism. The mapping of the political onto the public and the economy onto the private has created an apolitical notion of private activity which is preventing redistributive justice mechanisms. A real risk of the inability of global constitutionalism to talk about political economy lies in the unchallenged integration of more and more neoliberal policies. Indeed, in a dystopic turn, a global constitutionalism in which private activity is rendered entirely apolitical may already exist. The TTIP, as I have argued, was symptomatic of this form of global constitutionalism, and although obsolete, marks an important moment in the efforts to make real a neoliberal dystopia. Let us return to the questions posed above: (1) Is the globalising and constitutionalising of certain norms a means of privileging a particular political and economic elite? Private property owners, businesses, multinational corporations and financial capital are those parties who are best served by a separation of the public and the private because it offers them an unbridled and protected space of activity. (2) Is the assumed division between the public and

27 The TTIP has been described by several commentators as an ‘economic NATO’, including the NATO Secretary General Anders Fogh Rasmussen (Rasmussen 2013). The combative tone, and the association of the containment of enemies which goes with it, of the leading military powers is what makes this particularly worrying. 28 De Ville and Siles-Brügge (2016) argue that a paradoxical and unintended outcome of this secrecy has been heightened civil society interest and political participation.

The political economy of global constitutionalism  553 private spheres in constitutionalism problematic, particularly if this concomitantly means the depoliticisation of the economy? The assumed and naturalised division between these spheres essentially renders the activity of private entities apolitical; constitutionalism ‘locks in’ as well as legitimates this. (3) If a particular (economic) elite benefits from constitutionalisation of this kind, then who loses out? Neo-liberalism has a way of increasing income disparities because it is incapable of meaningful distributive justice. This means that a small economic elite benefits at the expense of the rest. (4) What and who is left uncontested in a depoliticised economy? Precisely these inequalities are left uncontested. As there is no way of politically challenging the practices of the private sphere, there can be no contestation of it. A political economy perspective on global constitutionalism not only allows us to ask important questions on distributive justice in the international (and domestic) sphere, it also forces us to think about the material conditions today. At the same time as attention is on the utopian visions of global constitutionalism, espoused by mainly well-meaning scholars, we may be missing the constitutionalisation of a troubling dystopian neoliberal and neocolonial order.

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39. Global religion in a post-Westphalia world Susanna Mancini

CUIUS REGIO EIUS ET RELIGIO: THE CHALLENGE OF DE-PRIVATIZED RELIGION AND THE INTERPLAY BETWEEN FAITH AND REASON Globalization, de-privatization, mass-scale migration and the rise of supranational constitutional organisms have squarely challenged the premises of the Westphalian model of coordination of religion and political boundaries. Ironically, as a result of such challenges, our contemporary post-Westphalian predicament shows some remarkable parallels with the pre-Westphalia era, which was characterized by flux in sovereignty, religious transnationalism, religious conflicts and wars of religion (Philpott 2004, p. 982). The Peace of Westphalia, signalling the official end to the Thirty Years War, established the principle cuius regio eius et religio (in who’s region, who’s religion), which conferred upon the constituent imperial estates of the Holy Roman Empire the power to determine the religion of their subjects. The principle cuius regio eius et religio not only fostered religious homogeneity; it also enabled the state to regulate religion as part of state sovereignty, which encompassed the power to determine the frontiers of religious jurisdiction. Westphalia inaugurated a system based on the absolute monopoly of power residing in states, the congruency of territory, state, people and nation, and set the premises for the privatization of religion. The sovereign state became the basic unit of international relations: in this light, Westphalia ‘secularized international relations by undermining religion as a mode of legitimacy’ (Teschke 2003, p.3). Perhaps even more importantly, Westphalia provided a ‘liberal’ solution to religious disagreement: ‘by devolving the question of controversial rights to subnational governments, Westphalian liberalism ensure[d] that different conceptions of the right can prevail in different jurisdictions’ (Hills 2006, pp. 782, 788). During three centuries, while the conceptualization of the sources of state sovereignty underwent profound changes, the premises of the Westphalia system remained fairly unchallenged. Since the inception of the new millennium, however, religion has returned as a contentious issue both domestically and internationally. Globalization and mass-scale migration have produced a blurring of the line between the private sphere and the public sphere. First, large-scale migration produces intra-state religious diversity, leading to confrontations with religious cultures that are at significant odds with prevailing mores that are well integrated into the country of immigration, and triggering defensive reactions. In Europe, for example, ‘the presence of an increasingly assertive Muslim “diaspora” . . . has provided opportunities for a re-politicization of Christianity, in opposition to both the secularization and perceived “Islamization” of Europe’ (Shani 2009, p. 311). Moreover, several commentators, including the philosopher Jürgen Habermas, have argued that intensification of religious fanaticism and fundamentalism – including that behind global terrorism – is a direct reaction to dislocations and inequities associated with globalization (Habermas and Borradori 2003, p. 36). In a trend that started in the 1970s in different parts of the world, such as the United States, Brazil, 556

Global religion in a post-Westphalia world  557 Nicaragua, Poland, Turkey and Iran, religions increasingly seek a role in the public sphere, and particularly in the political arena. To describe this phenomenon, sociologist José Casanova has famously coined the expression ‘de-privatized religion’ (Casanova 1994). The de-privatization of religion raises a major dilemma for Western constitutionalism, which rests on the acceptance of a clear-cut distinction between the realm of faith and that of reason, and is committed to ruling the public sphere according to the dictates of reason. Thus, as maintained by the philosopher John Rawls in Political Liberalism, a political actor can be motivated by his religious faith and yet his political actions would remain consistent with secularism as long as he sought to influence and persuade other political actors through arguments deriving from public reason (Rawls 1993). In ‘The idea of public reason revisited’, Rawls argues that religious doctrines should endorse constitutional democracy, which is the only fair way to ensure that the liberty of their adherents is consistent with the equal liberties of other reasonable, free and equal citizens. Importantly, Rawls added that his revisited public reason requires a religiously pluralistic polity, where all citizens, irrespective of their faith, feel a ‘duty of civility’. This duty, for religious citizens, means that they should use arguments and ideas that, albeit rooted in religion, are in harmony with toleration for all and with fundamental rights (Rawls 1997, pp. 765–807). Currently, however, religious arguments, often cast in the language of ‘natural law’, are increasingly invoked to antagonize the ‘culture of rights’ and the very legitimacy of the dominant conception of constitutionalism and its nexus to the principle of secularism. For example, in 2009, over 150 American religious leaders signed the Manhattan Declaration, a manifesto issued by Orthodox, Catholic and Evangelical Christian leaders, advocating the protection of life from the moment of conception, opposite-sex marriage only and religious freedom. The latter is defined by the Declaration in these terms: ‘No one should be compelled to embrace any religion against his will, nor should persons of faith be forbidden to worship God according to the dictates of conscience or to express freely and publicly their deeply held religious convictions.’ The Declaration refers to the ‘weakening of conscience clauses’ and to the use of anti-discrimination law to compel ‘religious institutions, businesses and service providers of various sorts to comply with activities they judge to be deeply immoral or go out of business’, and openly vows civil disobedience: We are Christians who have joined together across historic lines of ecclesial differences to affirm our right – and, more importantly, to embrace our obligation – to speak and act in defense of these truths . . . no power on earth, be it cultural or political, will intimidate us into silence or acquiescence. . . . Through the centuries, Christianity has taught that civil disobedience is not only permitted, but sometimes required.1

Similarly, in a lecture delivered in 2008, the Archbishop of Canterbury stressed ‘the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to “activate” this whenever called upon’ (Williams 2008).

1 Manhattan Declaration, accessed 28 April 2017 at http://​manhattandeclaration​.org/​man​_dec​ _resources/​Manhattan​_Declaration​_full​_text​.pdf.

558  Handbook on global constitutionalism The arguments used by advocates of this thick conception of religious freedom invoke reason instead of faith, use the language of religious freedom and anti-discrimination, based on the claim that the right use of reason in legal arguments leads to the same conclusions as theological reasoning (Lemaitre Ripoll 2012). According to former Pope Benedict XVI, for example, ‘Religion is not a problem for legislators, but a vital contribution to the national conversation’ and to a more effective implementation of a just political and legal system (Ratzinger 2010). This is because the Catholic tradition maintains that ‘the objective norms governing right action are accessible to reason, prescinding from the content of revelation’ (Ratzinger 2010). The theoretical premise of this position is the Schmittian assumption that modernization does not entail the privatization of religion but, rather, its transfer into the political. Thus, ‘All significant concepts of the modern theory of the state are secularized theological concepts’ (Schmitt 1922 [1985], p. 36/G43), a position clearly echoed in the words of former Pope Benedict in his address to the German Parliament: ‘In history, systems of law have almost always been based on religion’ (Ratzinger 2011). In this light, Catholics do not intervene in political discourses in the name of religious dogmas, but on the authority of reason. ‘The originality of Christianity with respect to other religions is self-evident in this thought . . . it is not revelation, but “reason and nature in their interrelation that form the universally valid form of law”’ (Cartabia and Simoncini 2015, p. 4). What follows is that religion ought to be an essential part of the foundation and infrastructure of the modern constitutional and human rights regime. Reflecting on the preconditions of democracy, Hans Kelsen famously argued against ‘the claim of theology that it furnishes a foundation for democracy which it attempts to verify by showing that there is an essential connection between democracy and Christian religion’ (Kelsen 1955, p. 41). For Kelsen, a ‘democratic attitude’ requires a relativistic philosophy of values, that is, a system that ‘leaves the decision about the social value to be realized to the individual acting in political reality. It does not and cannot take the burden of this grave responsibility off his shoulders’ (Kelsen 1955, p. 40). On the contrary, the assumption ‘that cognition of absolute truths, insights into absolute values were possible’, is likely to produce an ‘autocratic attitude’ (Kelsen 1929 [2000], p. 107). In this light, religious doctrines that use the framework of constitutional rights allocation and the rhetoric of human rights discourse are likely to turn protection of rights on its head and in fact assert a religious hegemony that would deprive others of fundamental rights and return to a pre-modern constitutional statute. In effect, what is claimed in this context is not religious freedom but rather religious authority. Unsurprisingly, claims for religious exemptions from the application of general laws have proliferated in recent years. In 2014, the US Supreme Court ruled that corporations controlled by religious entrepreneurs cannot be required to comply with a law that compels employers to provide their employees with a health insurance plan that covers contraceptives. The court found that this requirement placed a substantial burden on the religious freedom of the employers, who believed that certain contraceptives were a­ nalogous to abortions and did not want to become complicit in the sinning of their employees (Burwell v Hobby Lobby 2014). Similar cases have occurred in the context of same-sex marriage. State officials have refused to register same-sex unions, on the ground that they are immoral (Eweida and Others v the United Kingdom 48420/10, 59842/10, 51671/10 and 36516/10, ECtHR 2014), and professional photographers and bakers have claimed the right to discriminate against gay and lesbian clients, denying them their services (Lee v Asher (County Court in Northern Ireland) 19/05/2015). Italy was recently condemned by the European Committee for Social Rights for ‘violation

Global religion in a post-Westphalia world  559 of the right to health . . . due to inadequate protection of the right to access procedures for the termination of pregnancy’, on the ground that over 70 per cent of gynaecologists object to participating in abortion procedures (IPPF v Italy, Complaint No. 87/2012, 2013, ECSR). Claims of this kind testify to a profound distortion of the very idea of conscientious objection, from a right traditionally provided to minorities (such as pacifists) holding anomalous views to a politically motivated collective strategy to undermine the general applicability of secular laws in the name of religious principles. The claims of ‘conscientious objection’ have turned into claims for ‘jurisdictional objection’, which constitutes a direct challenge to the state power to determine the frontiers of religious jurisdiction. The preceding observations should be understood in the context of two essential changes brought about by globalization and the expansion of plurality of conceptions of the good in various policies. On the constitutional level, the unity of the Westphalian legal regime has increasingly given way to legal pluralism and to the need to accommodate and harmonize legal norms issued from different and sometimes competing regimes. From the standpoint of secularism, as a paramount organizing principle in the Westphalia constitutional order, there seems to be an equivalent transformation from unitary secularism towards a plurality of religious ideologies in competition with one another. These are parallel and, at least to some extent, related trends that raise the following key question: can legal pluralism in a globalized world successfully replace Westphalian legal unity? Also, can concurrently value pluralism as embodied in religious diversity successfully supplant state sponsored secularism? This latter question does not admit of any easy or ready-made answer, however, certain implications and developments suggest fertile ground for further inquiry. On the one hand, it appears that the parallel between value pluralism in relation to religion and legal pluralism breaks down at important junctures. This becomes obvious when we compare an imagined religious pluralistic solution to a solution animated by value pluralism. As Isaiah Berlin clearly indicated, value pluralism depends for its success on the selection of a number of different values that cannot be mutually integrated but that fit within a fairly narrow range of acceptability (Berlin 1969). It is difficult to imagine that the proponents of competing and conflicting religions, many of which have been at odds with one another for millennia, could be contained in a logical and orderly fashion in the same way as the divergent values that Berlin defends. On the other hand, as suggested by the passages by former Pope Benedict XVI, there are religious visions that aim at merging religious truth with the insights of reason. Taking this position to its logical conclusions, we could imagine that a particular type of non-secular religious pluralism could align with legal pluralism to define the landscape of the post-national constitutional order.

THE GLOBALIZATION OF CULTURE WARS The erosion of state sovereignty and the weakening of the territorial dimension of identity have made room for the resurgence of religions as transnational actors. Sociologist Olivier Roy has remarked that globalization, by facilitating the detachment of religion, culture, and territory, unravels religious traditions from particular cultures and nationalities. Moreover, as the experience of certain global religious movements, such as Salafism, Pentecostalism and Evangelicalism shows globalization sets the premises for a fundamentalist turn of religion, because its claim of a universal truth is inherently disconnected from particular states and

560  Handbook on global constitutionalism societies (Roy 2010). The success of transnational religions is not limited to movements such as Pentecostalism, that do not rely upon a highly centralized structure, nor on historical links to tradition and have no territorial roots or identity ‘and . . . therefore can make [themselves] at home anywhere in the globe where the Spirit moves’ (Casanova 2008, p. 115). José Casanova has remarked that, thanks to the opportunities provided by globalization, contemporary Catholicism has recuperated its transnational dimensions ‘which had been characteristic of medieval Christendom, from the transnational Papacy to transnational religious orders, to ecumenical councils, to transnational universities and centers of Catholic learning, to transnational pilgrimages’ and had disappeared with the emergence of the Westphalian system (Casanova 2008, p. 115). Transnational religious actors have found a fertile terrain to ‘articulate a transnational identity which, potentially, challenges the international order of territorialized nation-states, that dates back to the Peace of Westphalia’ (Shani 2009, p. 308), and, at the same time, undermines the very legitimacy of transnational constitutionalism, because it predicates constitution making on what it perceives as universally applicable religious precepts (Backer 2006, p. 91). As Catá Backer explains, ‘the principal project of convergence-oriented supranational constitutionalism is the search for consensus on values, [which] requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights’ (Backer 2006, p. 99ff.). Transnational religious actors appropriate and transform the distinction between faith and reason, which was adapted to the nation state during the Westphalian era. They conflate faith and reason disregarding all the cultural, political and traditional nation-state connections that were prevalent in the Westphalian setting, which results in free floating, all applicable doctrines that supposedly satisfies both faith and reason at the transnational level. Kelsen’s point regarding the democratic necessity of a relativistic philosophy of values is even more acute in the transnational context in which there is bound to be a much greater diversity of religions, cultures and ideologies. The religious claim to a particular truth that is applicable to all seems in direct contradiction with supranational constitutionalism, which must and seeks to reserve a large space for a pluralism of values, including pluralism within and beyond religious communities (Chapter 33 in this Handbook. This leaves an important question open, namely, how much cultural and religious diversity supranational constitutionalism is capable of accommodating. As Philpott argues, ‘The dilemma is heightened most by the advocacy of certain norms that are both arguably universal, justly demanded upon states, as well as religious in their content, evoking deep value conflicts. The human right of religious freedom . . . is precisely such a norm’ (Philpott 2004, p. 982). Thus, globalization has paved the way for a transnationalization of the American ‘culture wars’, that is, the clash between liberal secular and conservative religious social forces. Today, governments, lobbies and non-governmental organizations (NGOs) compete worldwide to impose ‘their’ supposedly universal notion of religious freedom. In 1998, the United States Congress adopted the International Religious Freedom Act, which mandates the promotion of religious freedom around the world as a central element of US foreign policy. The US model was soon replicated by Canada and the European Union.2 The ‘export’ of Western models of religious freedom poses, in the first place, the problem of how to identify the forms of religious freedom to be protected and those to be punished. This carries the risk of turning international protection 2 EU Guidelines on the promotion and protection of freedom of religion or belief, Foreign Affairs Council meeting, Luxembourg, 24 June 2013.

Global religion in a post-Westphalia world  561 of religious freedom into an imperialistic attempt of cultural colonization and promotion of ‘strategic interests through social and religious engineering projects abroad’ (Shakman Hurd 2014, p. 232). At a deeper level, as Elizabeth Shakman Hurd explains: The promotion of religious freedom is more complex than accounts that tell of the progressive dissemination of a universal norm and American or European legal standard would suggest. In positing the primacy of religious identity and difference over other social, political and economic ties and affiliations, international religious freedom advocacy accentuates and rigidifies religious divisions, making them more politically salient – and potentially more socially divisive. As a discursive framework and a language of political action, advocacy for religious freedom obfuscates complex political realities and obscures diverse and multiform religious affiliations and practices. (Shakman Hurd 2014, p. 241)

Western countries are not alone in their attempt to export religious freedom and/or religious doctrines in the global arena. The United Nations (UN) has become the venue of a bitter confrontation among supporters of different conceptions of religious freedom and, more generally, of the role of religion in the international legal order. In 2011, the United Nations Human Rights Council passed a resolution entitled ‘Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind’.3 The resolution was prompted by the Russian Government, which gained the support of the ‘Global South’, including countries of the Arab League. The resolution echoes the position of the Russian Orthodox Church concerning the foundations and scope of human rights (Stoeckl 2014, p. 111), affirming that ‘dignity, freedom and responsibility are traditional values’, and that family, community, society and educational institutions have a fundamental role in maintaining and passing on such values. As McCrudden notices, in this construction, ‘In particular, dignity is seen . . . as having the potential to rebalance international human rights back towards the local and the indigenous, weakening the pull of a homogenizing, universal, and liberal agenda’ (McCrudden 2014, p. 3).4 The EU pointed to the ‘potential harm posed by the concept of traditional values in undermining the universality and inalienability of human rights’.5 Hence the resolution can be viewed as part of an attempt by Russia to re-affirm the transcendent foundations of human rights and the role of ‘religious beliefs in the sphere of norm creation, interpretation and interpretation’ (McCrudden 2014, p. 12) and as a strategy to impose an ideological monopoly, by bringing together conservative governments and religious actors from different Christian denominations, unified by an agenda mostly focused on opposing Lesbian, Gay, Transgender, Bisexual and Queer (LGTBQ) rights and women’s equality.6 Transnational religious activism reaches well beyond the UN. A powerful network of faith-based NGOs, mainly led by US Evangelicals and other right-wing Christians, has

3 Resolution A/HRS/16/L.6 entitled ‘Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind’, 24 March 2011. 4 See, for example, former Pope Benedict XVI: ‘The essential foundation of human dignity lies in the common origin of the person as image of the Creator’ (Ratzinger 2008, pp. 5–6). 5 EU Statement to the Human Rights Council, 13 September 2013. 6 See UN High Commissioner for Human Rights, Summary of information from States Members of the United Nations and other relevant stakeholders on best practices in the application of traditional values while promoting and protecting human rights and upholding human dignity, A/HRC/24/22, para 3, cautioning against the negative impact on the implementation of human rights, ‘especially those concerning violence against women, sexual orientation, gender identity, age and disability’.

562  Handbook on global constitutionalism become highly influential in shaping anti-gay and anti-abortion legislation abroad. In Africa, organizations such as the American Center for Law & Justice, Human Life International, and Family Watch International ‘work both separately and in tandem to renew and expand colonial-era proscriptions on sexual rights’, building political networks and legal infrastructure across the continent (Kaoma 2012, p. iii). As a result, anti-gay laws have been adopted in several African countries, notably Mali, Nigeria and Uganda, where a 2009 bill instituted the death penalty for ‘aggravated homosexuality’. Similar dynamics are at play in Russia, where the alliance between governmental actors, the Orthodox Church and US Evangelicals has been particularly fruitful. Laws have been adopted targeting sexual minorities and heavily limiting reproductive rights. Ironically, Russian conservatives systematically rely on the equation between sexual and reproductive rights and ‘Western’ attempts to uproot local traditional values. However, the Russian 2011 abortion law clearly echoes the language of US pro-life propaganda (Federman 2014). In 2011, the World Congress of Families (WCF, an interfaith intercontinental organization advocating for the ‘natural family’ as the fundamental social unity) held its first Demographic Summit in Moscow. It was attended by leading US Evangelicals, Orthodox Church leaders and prominent Russian politicians. In promotional materials the WCF claims that the summit ‘helped pass the first Russian laws restricting abortion in modern history’ (Federman 2014). Transnational religious actors also heavily engage in both domestic and international religious litigation. As the conservative Christian Alliance to Defend Freedom declares on its website: ‘We are working to defend religious freedom in key international cases’, because ‘[i]nternational cases have the potential to set legal precedents that cross national borders, and even impact US law.’7 The European Convention on Human Rights (ECHR) has proven to be a particularly successful forum for religious lobbies to intervene in cases regarding gay marriage, abortion and religious freedom. For example, in the high profile case of Lautsi v Italy (Lautsi and Others v Italy App. no. 30814/062 (ECtHR Nov. 2009)), the European Court of Human Rights (ECtHR) condemned Italy for the mandatory display of crucifixes in state schools. This decision was reversed two years later (Lautsi and Others v Italy App. no. 30814/06, ECtHR, GC 2011), thanks to the combined effort of a ‘variegated coalition of actors’ ranging from the Vatican to Russia, as well as to American Conservative Evangelicals, whose experience in religious litigation served as a model for their European counterparts (Annicchino 2011). Alliance Defending Freedom represented 33 members of the European Parliament who intervened on the side of Italy. According to the Alliance legal counsel: A loss in this case would have . . . set a dangerous example for the rest of the world. For instance, lawsuits that seek to tear down religious symbols . . . are very common in the U.S. In addition to the concerns directly related to this case, ADF wants to head off any opportunity for activists in the U.S. to cite foreign court decisions as patterns to follow. We will continue fighting that battle in all of the cases in which we are involved.8



http://​www​.adflegal​.org/​issues/​international (accessed 27 April 2017). Alliance Defending Freedom website, accessed 23 June 2016 at http://​www​.adfmedia​.org/​News/​ PRDetail/​4037. 7 8

Global religion in a post-Westphalia world  563

CUIUS RELIGIO EIUS ET REGIO: RELIGIOUS NATIONALISM AND THE CULTURALIZATION OF CITIZENSHIP Secularization has been conceived as a key issue in the road to modernization since the Enlightenment. In Max Weber’s influential account, the entire history of Western legal systems consists in a process of rationalization that unravelled the conflation of ethical, religious and legal norms that was typical of pre-modern law. A process of rationalization led to the replacement of superstitious and ceremonial law of primitive peoples by, first the integration of faith and reason of Christianity and the other monotheistic religions, and later by entirely reason-based modern secularism issued from the Enlightenment (Weber 1922 [1978], p. 644ff.). Since 1997, the Western secular model has been subject to much criticism. In particular, the assumed neutrality of the Western secular public sphere has been challenged on the ground that the historical and cultural nexus between secularism and Christianity prevents the equal treatment of all religions and ends up penalizing non-Christian denominations. In this light, secularism is not a universal doctrine, but rather Christianity by another name (Anidjar 2003). The notion of a neutral secular reason that has traditionally undergirded secularism as a political doctrine has also been questioned. Talal Asad, for example, holds that ‘The ideology of political representation in liberal democracies makes it difficult if not impossible to represent Muslims as Muslims. Why? Because in theory the citizens who constitute a democratic state belong to a class that is defined only by what is common to all its members and its members only’ (Asad 2003, p. 173). Thus, both secularism and religion cannot be decontextualized and disentangled from a specific cultural and historical form. These critiques offer a particularly useful conceptual platform to understand contemporary paroxysm around Muslim citizens and migrants and its nexus to the emphasis on the Christian roots of Western civilization. Islamophobia is a complex, multifaceted phenomenon. One of its component is the construction of Muslims as a challenge to liberal, secular Western values, because of their assumed religious backwardness and inability to accept a clear-cut divide between (their) faith and reason. Political belonging is thus increasingly understood in terms of a distinction between the Western secular self and a religiously threatening Muslim other. At the same time, however, cultural Christianity has regained an overriding influence in constituting the imagined identity of Western peoples. The interplay of secularism and religion has thus become a central feature of contemporary struggles over identity and citizenship. This dynamic ultimately blurs the line between secularism and religion: the first loses its historical and ideological component, and the latter ceases to be a belief system. Secularism and religion become empty and yet powerful representations of romanticized identities, that mark clear-cut divisions between insiders and outsiders (Mancini 2014). In effect, paradoxically, it seems as if secularism and religion had both absorbed the qualities that Carl Schmitt attributed to the Catholic Church: an institutional embodiment of the underlying unity of European political civilization, a ‘political form’ which revitalized the significance of national and class oppositions, a complex of opposites. For Schmitt, the Catholic Church was the inheritor of the Roman Empire, the living embodiment of the classical political civilization which all Western European peoples shared, responsible for the historical evolution of Europe’s distinctive national cultures. The Catholic Church represented the values which were the essence of European civilization – as a unity expressed in diverse national forms – and separated it from barbarism (Schmitt 1923 [1996], p. 8).

564  Handbook on global constitutionalism This conflation of secularism and religion in defining political belonging is clearly perceivable in the many European democracies. The de-privatization and the transnationalization of religion have altered the traditional models through which democracies have managed the relationship between religion and the state, which were embedded in the principles that emerged after Westphalia. Western models of managing the relationship between religion and the state vary considerably. France and the United States are traditionally described as strictly secular, whereas the United Kingdom, the Scandinavian countries and Greece provide models where an official religion coexists with institutionalized tolerance for minority religions, and Italy and Spain constitute a middle-ground model, where special privileges are conferred upon the majority Catholic Church within an otherwise secular frame. From a constitutional standpoint, however, all Western models of managing religion are steeped in the normative order issuing from the Enlightenment. Hence, irrespective of their differences, they all adhere to two fundamental principles: the separation of Church and State in the public sphere and the protection of freedom of and from religion within the private sphere. Many constitutions reflect this dual constitutional prescription. Thus, the US Constitution’s ‘Establishment Clause’ prohibits the state from adopting, preferring or endorsing a religion, whereas its ‘Free Exercise Clause’ enjoins the state from interfering with the religious freedom of its citizens. Article 1 of the French Constitution specifies the secular character of the Republic and the duty of the state to respect all beliefs. Other constitutions only contain a freedom of religion clause, but implicitly embed separation in the founding principles of the system. Globalization and mass scale migration put in question the powers of integration of a secularized society. Secularization and the transition to liberalism resulted in a state model no longer endorsing a conception of the good related to a particular religion. Thanks to the crisis of the nation state, however, religions have regained a central position as sources of integration of the polity. In this respect, the emphasis is often not placed on the transcendent nature of religion but, rather, on its cultural dimension. Thus, religion undergoes a process of secularization and semantic disarticulation, and becomes an implicit mainstay engrained in the secular nation’s tradition and culture. This process leads to two consequences: on the one hand, it fosters the return of Christian culture and tradition in the public sphere, challenging the principle of separation between Church and State. The premise is that states must recognize that the national religious inheritance is not just one among other denominations, but rather an element of civic cohesion. What follows is that the historical national religion should enjoy a preferential treatment, while other denominations should simply be tolerated. Secularism, thus, turns into a ‘pale reincarnation of the past’, a sort of ‘semi-secularism’ that represents what remains of the old dream of the ‘Christian Republic’ and is based on the opposite of the Westphalian principle: cuius religio, eius et regio. The result is a ‘new form of alliance between religion and public power, where the ethical force of the first one upholds the political force of the latter and vice versa’ (Zagrebelsky 2008, pp. 17–19). On the other hand, the culturalization of religion facilitates the othering and the marginalization of non-Christian cultures, thus lowering the protection of religious freedom (Mancini 2014). In Europe this dynamic is vividly exemplified by the struggle over the presence of religious symbols in public spaces. The European Court of Human Rights has legitimized the display of the crucifix in Italian state schools, on the ground that the crucifix is a ‘passive’ symbol, whereas it has consistently upheld all bans on Muslim attire, judging the latter ‘powerful religious symbols’ that cannot be reconciled with secularism, gender equality, the

Global religion in a post-Westphalia world  565 religious freedom of others or, simply, run contrary to the understanding of ‘living together as a community’.9 In this construction, Islam becomes an utterly irreconcilable other, at odds with ‘Western’ values, while Christianity is construed as a structural element of the secular European public sphere. Paradoxically, this results in the blurring of the line between secularism and religion, which both become guarantors of cultural convergence (Mancini 2014). The conflation of religion and culture is also clearly perceivable in the increasing ‘culturalization’ of citizenship. Recently, many states introduced citizenship tests or have added stricter requirements of civic knowledge to previously existing language tests. In 2006, the German Land of Baden-Württemberg proposed to introduce as part of the citizenship test a questionnaire that was later retracted and replaced by a federal citizenship test. The questionnaire covered virtually all perceived sources of cultural or religious clashes with the Muslim community: homosexuality, forced marriage, polygamy, honour killing, and so on. It included questions such as: ‘How would you react if your adult daughter wanted to dress as any German woman? And if your brother or son was insulted?’ In 2008, the French Conseil d’Etat (Council of State) rejected the appeal of Ms. M., a Moroccan national who had been denied French citizenship on the ground that she was not sufficiently assimilated, based on her dress (a full-face veil), virtual seclusion and submission to her husband. The Conseil d’Etat held that ‘Despite having a good command of French, the applicant has nevertheless adopted a radical practice of her religion, which is incompatible with the essential values of the French community and particularly with the principle of sex equality; therefore, she does not satisfy the requirement of assimilation.’ The Conseil added that this decision did not entail a violation of Ms. M’s religious freedom (Conseil d’Etat, 27 June 2008 req. no. 286798). Many European countries have also progressively widened the power of the government to strip naturalized citizens of their nationality. ‘Since 2006, the UK has stripped at least fifty-three UK nationals of citizenship ... All but one of the subjects of national security revocations were Muslim males, and in all but two known cases since 2006, the Home Secretary issued the order when the person was abroad’, thus barring him from appealing the decision (Macklin 2014, p. 17). A similar dynamic can be observed in the responses to the refugee and asylum seekers crisis that hit Europe as a consequence of the conflicts in the Middle East. In August 2015, Hungary erected a 170-kilometre razor-wire fence along its border with Serbia, to keep out asylum seekers. According to the Hungarian Prime Minister Victor Orban: Those arriving have been raised in another religion, and represent a radically different culture. Most of them are not Christians, but Muslims. This is an important question, because Europe and European identity is rooted in Christianity. Is it not worrying in itself that European Christianity is now barely able to keep Europe Christian? There is no alternative, and we have no option but to defend our borders.10

See decisions Lautsi and Others v Italy App. no. 30814/06 ECtHR, GC (2011), Dahlab v Switzerland, App. no 42393/98 ECtHR (2001), Sahin v Turkey, App. no. 44774/98, ECtHR (2007), Dogru v France, App. no. 27058/05 ECtHR (2008) and S.A.S v France, App. no. 43835/11 ECtHR GC (2014). 10 The New York Times, 2 September 2015 (accessed 27 April 2017) at http://​www​.nytimes​.com/​ 2015/​09/​04/​world/​europe/​hungarian​-leader​-rebuked​-for​-saying​-muslim​-migrants​-must​-be​-blocked​-to​ -keep​-europe​-christian​.html​?​_r​=​0. 9

566  Handbook on global constitutionalism These examples show that the dynamics associated with the return of strong religions in an age of globalization and mass-scale migration contribute to the establishment of boundaries between the self and the other and to the avoidance of dialogue and compromise. By conflating ethnicity, culture, religion and identity, and by radicalizing ideological confrontations, the return of strong religion has the potential to undermine the premises of any constitutional project founded on pluralism and mutual recognition. For all the changes that have taken place it seems as if our predicament is still caught between a Schmittian identity-centred conflict between friend and foe, and a Kelsenian need for a formalistic framework that transcends or sets differences aside.

REFERENCES Anidjar, G. (2003), The Jew, the Arab: A History of the Enemy, Stanford, CA: Stanford University Press. Annicchino, P. (2011), ‘Winning the battle by losing the war: the Lautsi case and the holy alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to reshape European identity’, Religion and Human Rights, 6 (3), 213–19. Asad, T. (2003), Formations of the Secular: Christianity, Islam, Modernity, Stanford: Stanford University Press. Backer, L.C. (2006), ‘Theocratic constitutionalism: an introduction to a new global legal ordering’, Indiana Journal of Global Legal Studies, 16 (1), 85–172. Berlin, I. (1969), ‘Two concepts of liberty’, in I. Berlin, Four Essays on Liberty, Cambridge: Cambridge University Press. Cartabia, M. and A. Simoncini (2015), ‘A journey with Benedict XVI through the spirit of constitutionalism’, in M. Cartabia and A. Simoncini (eds), Pope Benedict XVI’s Legal Thought. A Dialogue on the Foundation of Law, Cambridge: Cambridge University Press, pp. 1–30. Casanova, J. (1994), Public Religions in the Modern World, Chicago, IL: University of Chicago Press. Casanova, J. (2008), ‘Public religions revisited’, in H. de Vries (ed.), Religion: Beyond the Concept, New York: Fordham University Press, pp. 101–19. Federman, A. (2014), ‘How US Evangelicals fueled the rise of Russia’s “pro-family” right’, The Nation, January, accessed 6 June 2016 at http://​www​.thenation​.com/​article/​how​-us​-evangelicals​-fueled​-rise​ -russias​-pro​-family​-right/​. Habermas, J. and G. Borradori (2003), Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida, Chicago, IL: University of Chicago Press. Hills, R.M., Jr. (2006), ‘Federalism as Westphalian liberalism’, Fordham Law Review, 75 (2), 769–98. Kaoma, K. (2012), Colonizing African Values: How the U.S. Christian Right is Transforming Sexual Politics in Africa, Somerville, MA: Political Research Associates. Kelsen, H. (1929), ‘On the essence and value of democracy’, reprinted in A. Jacobson and B. Schlink (eds) (2000), Weimar: A Jurisprudence of Crisis, Berkeley, CA: University of California Press, pp. 84–109. Kelsen, H. (1955), ‘Foundations of democracy’, Ethics, 66 (1), 1–101. Lemaitre Ripoll, J. (2012), ‘By reason alone: Catholicism, constitutions, and sex in the Americas’, International Journal of Constitutional Law, 10 (2), 493–511. Macklin, A. (2014), ‘Citizenship revocation, the privilege to have rights and the production of the alien’, Queen’s Law Journal, 40 (1), 1–54. Mancini, S. (2014), ‘The tempting of Europe, the political seduction of the cross: a Schmittian reading of Christianity and Islam in European constitutionalism’, in S. Mancini and M. Rosenfeld (eds), Constitutional Secularism in an Age of Religious Revival, Oxford: Oxford University Press, pp. 11–135. McCrudden, C. (2014), ‘Human rights, southern voices and “traditional values” at the United Nations’, Public Law Research Paper No. 419, 28 May, University of Michigan, Ann Arbor, MI. Philpott, D. (2004), ‘Religious freedom and the undoing of the Westphalian state’, Michigan Journal of International Law, 25 (4), 981–98.

Global religion in a post-Westphalia world  567 Ratzinger, J. (Pope Benedict XVI) (2008), Address to the General Assembly of the United Nations organisation, New York, 18 April. Ratzinger, J. (Pope Benedict XVI) (2010), meeting with the representatives of British society, Westminster Hall, Westminster, 17 September. Ratzinger, J. (Pope Benedict XVI) (2011), address to the Bundestag, Berlin, 22 September. Rawls, J. (1993), Political Liberalism, New York: Columbia University Press. Rawls, J. (1997), ‘The idea of public reason revisited’, University of Chicago Law Review, 64 (3), 765–807. Roy, O. (2010), Holy Ignorance: When Religion and Culture Part Ways, New York: Columbia University Press. Schmitt, Carl (1922), Political Theology: Four Chapters on the Concept of Sovereignty, trans. G. Schwab (1985), Chicago, IL: Chicago University Press. Schmitt, C. (1923), Roman Catholicism and Political Form, trans. G.L. Ulmen (1996), Westport, CT: Greenwood Press. Shakman Hurd, E. (2014), ‘Religious freedom, American-style’, Quaderni di Diritto e Politica Ecclesiastica, 1 (April), 231–42. Shani, G. (2009), ‘Transnational religious actors and international relations’, in J. Haynes (ed.), Routledge Handbook of Religion and Politics, Abingdon: Routledge, pp. 308–22. Stoeckl, K. (2014), The Russian Orthodox Church and Human Rights, London and New York: Routledge. Teschke, B. (2003), The Myth of 1648: Class, Geopolitics and the Making of Modern International Relations, London: Verso. Weber, M. (1922), Economy and Society: An Outline of Interpretive Sociology, vol. 2, reprinted 1978, Berkeley, CA: University of California Press. Williams, R. (Archbishop of Canterbury) (2008), Civil and Religious Law in England: A Religious Perspective, Temple Festival series at the Royal Courts of Justice, 7 February. Zagrebelsky, G. (2008), ‘Stato e Chiesa. Cittadini e cattolici’ (‘Church and State, citizens and Catholics’), Passato e Presente, 73, 5–19.

40. Constitutionalism and pluralism Neil Walker

A CONFLICTED RELATIONSHIP The briefest conceptual inquiry suggests why the relationship between constitutionalism and pluralism may be a conflicted one. Constitutionalism is based on the broad conviction that an institutional and normative framework for our common forms of political life can be supplied through a legal code. For its part, pluralism offers a concept with an even wider referential scope. Yet what all variants of pluralism have in common is an emphasis upon the existence of a multiplicity and diversity of sources of whatever is central to the particular plural domain in question, and upon the need to accommodate that multiplicity and diversity in terms that are not reducible to a set ranking or any other general ordering formula (Muniz-Fraticelli 2014, p. 11). These features are present whether we are concerned with a pluralism of social and political constituencies – the type of pluralism (‘political pluralism’ for short) with which constitutionalism is most directly engaged – or with a pluralism of moral values, or world-views, or institutional forms, or even of overall normative systems. The scope for constitutionalism and pluralism both to repel and to embrace one another is immediately apparent. The formal promise of constitutionalism typically sounds in singular terms. Constitutionalism is predicated on the idea of one overarching register of authority for the political domain as a whole, paradigmatically in the shape of the modern state. Yet the notions of unity, closure and hierarchical organisation of the duly constituted ‘body politic’ implicit in the idea of constitutional achievement are at odds with those of diversity, unsettlement and heterarchical accommodation we associate with the condition of political pluralism and its management. That is to say, the material circumstances and terms of engagement of constitutionalism are highly pluralistic. The making and sustaining of political society is more than ever concerned with the negotiation and reconciliation of the differences in self-understanding and world-view between these individuals and groups who live together in physical or other forms of practical proximity. It follows that the success of any constitutional project in fashioning and sustaining such a polity depends on how acutely it comprehends and how effectively it addresses that basic plurality and variety, notwithstanding constitutionalism’s own formal singularity and unity. Briefly, constitutionalism operates in a pluralistic political environment – its methods and solutions shaped by the demands of that environment, but it does so in accordance with an internal normative logic that appears to run against the pluralist grain. By exploring that disjunction, and its associated tensions, we can capture much of the distinctive promise, limitations and challenges of the constitutional method today. In the following sections I conduct that exploration by looking at the two ways in which constitutionalism in practice seeks to entertain political pluralism. It does so most immediately as a matter of internal reference, operating within the confines of the constitutional order itself through what we may call ‘plural constitutionalism’ (Rosenfeld 2010; Walker 2010). It also does so more remotely as a matter of external reference, addressing the relationship of overlap and interplay between constitu568

Constitutionalism and pluralism  569 tional orders through what we may call ‘constitutional pluralism’ (MacCormick 1993; Walker 2002). In making these inquiries, we must also address the key question of just how much continuity there is or can be between these two approaches – between plural constitutionalism and constitutional pluralism. To what extent, if at all, does it make sense to see these as the product of one and the same constitutional ethic?

A PLURALITY OF PLURALISMS Before we carry out these investigations, however, we need to say a little more by way of specifying pluralism’s multiple fields of reference, and indicate how acknowledgement of this wider domain helps us better to appreciate its relationship with the concept of constitutionalism. As already noted, the type of pluralism with which constitutionalism is most concerned, and with which, therefore, we are most concerned in this chapter, is that pluralism of social and political constituencies which has come to assume such a prominent place in the late modern political landscape. That is, our focus is upon the way in which the fabric of common life, in Michel Rosenfeld’s term, becomes increasingly ‘communally pluralistic’ (Rosenfeld 2010, p. 21) with our basic common membership of the polity both embellished and qualified by various other forms of collective identity or association predicated upon shared material interests, ethnicity, language, culture, religion, gender, and so on. Political pluralism, so broadly understood, has both empirical and normative elements. Its point of departure is a range of descriptive and explanatory accounts of the significance of group affiliation in the political domain. Normatively, political pluralism invites us to take that empirical trend seriously – to view it, for reasons developed below, as an authentic expression of what we value individually and collectively and as a healthy component of a stable and diversely responsive political system, and so as worthy of respect and nurturing. The highlighting of political pluralism, however, does not mean that the various other forms of pluralism that figure in the literature of legal and political theory are irrelevant to our inquiry. Instead, they help us both explicate the value of political pluralism and track the range of possible constitutional responses to political pluralism. As we shall see, these other modalities of pluralism, rather than primarily empirical claims about developments in modern society, involve more rarefied ontological and epistemological claims about the fundamental character and basic structure of moral and political values and how we access knowledge of this, as well as more detailed normative claims justifying political pluralism and shaping or adjusting the legal and political landscape in light of that justification. Let us take, first, value pluralism, otherwise known as meta-ethical pluralism. This is the most abstract and philosophically the most fundamental species of pluralism. Much influenced by the seminal work of Isaiah Berlin (1969), meta-ethical pluralism holds, as a basic structural feature of our moral universe, that there are many different ends we may seek and values we may live by – equality, liberty, dignity, and so on, which are equally rational and equally defensible. Yet these values and ends are also incommensurable or, at least, we do not know and cannot agree on how to measure them to a common standard. They cannot be entirely reconciled, nor can they be situated on any single scale of measurement without some being elevated at the expense of others. In close company with value pluralism we may place the pluralism of world-views. This is perhaps most influentially depicted in John Rawls’s notion of a public political culture marked by a ‘reasonable pluralism’ (Rawls 1996, p. 217) in which

570  Handbook on global constitutionalism citizens live together in accommodation of their differing comprehensive conceptions of the good. Such comprehensive conceptions, according to Rawls, refer to ‘what is of value in human life’ (Rawls 1996, p. 13), including ideals of character, friendship and family relations, as well as notions of what is worth striving for in a life well lived. These two conceptions of pluralism are linked, both conceptually and normatively. Conceptually, if we accept the pluralism of values, we should also recognise that such an incommensurable – or at least, inscrutable – value set will figure in various combinations and with various emphases to produce a diversity of similarly incommensurable comprehensive conceptions of the good, both religious and secular. Normatively, while, as value pluralists we may, like Hobbes, discover in the absence of a gold standard of values a justification for the imposition of an absolute political authority as a way of avoiding or suppressing the chaos of ‘the war of all against all’ (Hobbes 1651[1948], p. 82), our sense that our political arrangements should be congruent with our moral understanding is more likely to persuade us to promote and defend institutions and ideologies that respect the pluralism of values and life-choices. That, in turn, implies support for a liberal conception of justice that does not seek to enforce or favour any particular comprehensive conception of the good, but instead tailors its reasonable pluralism to the endorsement of all such comprehensive conceptions that would subscribe to an ‘overlapping consensus’ (Rawls 1996, ch. 4) on the values of liberal democratic society itself. Also, a key such liberal democratic value is precisely the equal right of each person to uphold and seek to realise his or her own conception of the good, provided his or her actions are consistent with upholding a like right for others. These two variants of pluralism, with their close ties to liberalism, also connect to our key idea of political pluralism. In Rosenfeld’s terminology, they indicate an ‘individually pluralistic’ strain that, arguably, goes hand in hand with the communally pluralistic trend and underlying ethic of contemporary society (Rosenfeld 2010, p. 21). In this joining of hands is manifest a new kind of liberalism, namely a liberal pluralism (Galston 2002), which holds that membership of cultural communities, or other communities of interests or value, and the right to active participation in them, is vital to the exercise of true freedom for one or both of two reasons. On the one hand, for at least some strains of liberal pluralism, unlike the individual-centred tradition of classical liberalism, cultural membership is deemed essential to personal identity and its expression, and in that basic sense is constitutive of individual freedom (for example, Sandel 1982; Taylor 1992; Kymlicka 1995; Miller 1995). On the other hand, in a political environment characterised by the coexistence of different and sometimes contending communal identities, the capacity to pursue interests or values in common with like-minded group members may be crucially instrumental to the defence or pursuit of the ends of the group (for example, Dahl 1968; Hirst 1994; Muniz-Fraticelli 2014, pp. 17–25). Yet we should not underestimate the difficulties of containing the fact and value of political pluralism within the justificatory orbit of a specifically liberal pluralism, however broadly conceived. In the first place, the political affirmation of group identity can increase the power over their members of those cultural communities – religious, national or ethnic – that boast strong rights-trumping conceptions of the collective good, and may do so in ways that curtail individual autonomy. In the second place, the equal autonomy of the members of different groups may be compromised by privileging the communal good of some kinds of groups, typically national or other ethnic groups, over that of others. Most pointedly, the emphasis on the communal good as the road to individual self-realisation may lead to the elevation not only of the concerns of particular types of group over other types, but even of a particular dominant

Constitutionalism and pluralism  571 group or groups, again typically a dominant national or ethnic group, within a particular type. In the third place, the boundaries of membership of privileged groups may not be clear-cut or may, at the behest either of powerful insiders or of non-members, be drawn in a manner that does not command general agreement – leading those liable to be excluded to experience discrimination in terms of their capacity for individual self-realisation. It appears, then, that while its normative justification in some measure rests on liberal pluralism, whenever its more collectivist or communitarian orientation is emphasised political pluralism may come into conflict with liberalism’s individualist premises. That is, we cannot assume that the values associated with the ‘individually pluralistic’ and the ‘communally pluralistic’ always do go hand in hand, and we must factor in the inherent tensions between them when having regard to constitutionalism’s treatment of political pluralism. If value pluralism and the pluralism of world-views are situated conceptually and normatively ‘upstream’ of constitutionalism’s focal concern with a pluralism of social and political constituencies, the other two variants of pluralism on our checklist are located ‘downstream’. They both describe constitutionalism’s way of addressing the fact of pluralism. By institutional pluralism we mean these arrangements by which a governmental function or range of functions within a political community is exercised in such a way that no single institution within the governmental system possesses or can exercise a monopoly of authority. Authority is instead divided or shared between institutions or is subject to inter-institutional checks and balances (Halberstam 2012, pp. 109–24). By systemic pluralism we mean the juxtaposition of a number of entire normative systems – and of their referent ‘political communities’ – such that each system exercises some measure of authority over the same functional range, and so each is bound to acknowledge and, perhaps, accommodate the claims of the other system(s) (Halberstam 2012, pp. 94–109). We are already familiar with the distinction between institutional pluralism and systemic pluralism, for it maps onto the vital distinction between constitutionalism’s internal and external engagement with political pluralism, or between what we have termed plural constitutionalism and constitutional pluralism. It is to these two forms of engagement that we now turn.

THE INTERNAL APPROACH: PLURAL CONSTITUTIONALISM In the introduction I noted the tension between the formal promise of constitutionalism and the material terms of its engagement. How does that tension manifest itself? Bluntly, constitutionalism involves the construction and preservation of a certain kind of unit and also a certain kind of unity – the unity of the ‘constitutional people’, but in so doing it is bound to work with materials which speak to quite different kinds of units and unities – those that are the product of national, religious, ethnic, gender and other culture or interest-centred communal identities. This tension presents opposite dangers. On the one hand, the overarching political identity forged and presented as a constitutional identity must distinguish itself sufficiently from these other communal identities to be able to provide the framework of institutions, rights and responsibilities necessary for an individually and communally pluralistic polity that is proof against the undue influence of any of these other communal identities. On the other hand, in order to gain the necessary social and political traction to pursue its pluralist ambition, the project of constitutional identification must win and retain popular support across all of its social and political constituencies, and so must, in some measure, continue to recognise

572  Handbook on global constitutionalism and accommodate these same dominant or influential social and cultural forces from which it must first distance itself. The achievement of plural constitutionalism, therefore, is necessarily fragile. It is precariously posed between the Scylla of an anti-pluralist over-investment in prior collective interests and identities and the Charybdis of an under-investment in these same collective forms that would undermine its basic capacity to provide a mechanism of societal integration (Rosenfeld 2010, p. 29). How successfully the constitutional project manages the pluralist balancing act depends on a complex mix of variables. Even if we restrict our attention to national and other ethnic identity-based forms of pluralism, any particular constitution’s treatment of political pluralism is a highly variable function of its formative context, its relationship to ambient national and other cultures, and its design choices. Constitutions are born in different circumstances, whether the classic revolutionary model of French or American vintage – which may (as in the American case) or may not also involve a national independence movement, the ‘invisible’ model of British incrementalism, the externally coerced ‘war’ model of modern Germany, the increasingly influential ‘pacted transition’ model of contemporary Spain and South Africa, or – as a cosmopolitan variant on that last theme – the (typically United Nations-inspired) ‘internationally grounded’ model in contexts as diverse as East Timor, Bosnia and Sudan (Rosenfeld 2010, ch. 6). These formative models feed in a non-linear fashion into different relationship patterns between constitutional and other forms of identity. Whereas in the original German style the ethnic nation precedes both the state and the reflexively engaged constitutional identity, in the French style the state precedes the nation and gradually constructs the latter as demos rather than ethnos through a process of constitutional self-identification and guidance, while in the American style the constitution precedes both nation and state, to which it gives simultaneous birth. Beyond these classical paradigms, there are other increasingly prominent approaches, such as the Spanish style where the constitution seeks to (re)bind the multi-ethnic community, and the post-colonial style, which typically involves a complex mix of rejection of the imperial hegemon and reincorporation of familiar parts of its constitutional model (Rosenfeld 2010, ch. 5). The net result of these two sets of dynamics is to provide a range of different needs, resources and motivations for constitutions to recognise (or not) plural political constituencies. The circumstances of its birth and the homogeneity or otherwise of its cultural environment mean that the constitution may have greater or fewer cultural divisions to address and may count on more or less popular backing in developing pluralism-supportive norms and mechanisms, while the extent to which one or more dominant groups controls the commanding heights of constitution-making in the founding, or in later phases of amendment, may suggest a greater or lesser inclination to promote or endorse any such pluralist arrangements. Crudely, while there may be a felicitous fit between the existence of cultural divisions that require recognition and treatment on the one hand, and the adequacy of legitimating resources and the ripeness of motivation to supply such recognition and treatment on the other – especially where there has been an inclusive process of constitution-making or post-initiative homologation – we cannot guarantee such a virtuous cycle. Instead, the support for constitutions may track their affirmation of a dominant cultural community in ways that are neglectful or dismissive of minority rights and interests. Alternatively, a constitutional setting that is pronouncedly culturally heterogeneous, especially a setting in which a range of interest and identity cleavages (for example, national, religion and social class) are not cross-cutting but mutually reinforcing,

Constitutionalism and pluralism  573 may find scant resources of symbolic identification and little common motivation to provide the means to overcome or manage its differences. However, in order to refine and test these kinds of hypotheses we also have to appreciate the sheer range and diversity of mechanisms available for constitutions to ‘design in’ or ‘design out’ political pluralism. One general distinction in design philosophy, which can be used to frame and explain particular architectural decisions, is often made between integration and accommodation (Choudhry 2008), both of which, with their lesser or greater commitment to political pluralism, can be further distinguished from the determined pursuit of cultural homogeneity characterised by an assimilationist approach (McQuarrie et al 2008). Integrationists typically promote a single public identity coincidental with the state’s territory. They are generally against public institutional recognition of group identities and instead see convergence around a single public norm as crucial to stability, unity, equal respect for a classical liberal catalogue of individual rights and the overcoming of group-based parochialism and chauvinism. Accommodationists are much more receptive to difference. They support and promote dual or multiple forms of public group identity, and advocate cross-group equality of respect for difference-representing institutions. Social stability and parity of group status – here seen as a vital aspect of the state’s commitment to a ‘communally pluralistic’ form of equality – are viewed as crucially dependent upon this more difference-sensitive method of constitutional management. Integrationists differ from assimilationists in that they do not seek the erosion of private cultural or other forms of difference among citizens. In addition, the kind of single public identity that integrationists advocate is not closely modelled on a particular cultural norm that is not generally shared. Yet some forms of integrationist can nevertheless tend in an assimilationist direction (McQuarrie et al 2008, pp. 46–51). Republican integrationists, in particular, as in the cases of France and Turkey, have tended to hold an expansive view of what should be rendered publicly ‘neutral’ or homogeneous. They have subscribed to a robust secularism or laicism in the public sphere, and tended to favour the retention of a unitary state in which the political wishes of the people as a whole are paramount and disaggregated territorial groups are allowed little scope for self-government. Socialist integrationists are also universalistic in approach, though they have been more likely than republicans to be critical of difference-blind approaches to inequalities between groups. Liberal integrationists are the least committed to uniformity within this category of constitutional designer. They do not share the republican faith in unqualified popular sovereignty or the socialist faith in a general conception of the economic good. They have been more likely to insist on universal rights protection, as well as the checks available from a division of authority and electoral competition between different levels of government. As such, they may countenance or even favour federal arrangements, though based upon a principle of ‘territorial federalism’ (Kymlicka 2001, pp. 91–119) in which provincial boundaries are demarcated so as to minimise or counter ethnic or national divisions rather than to recognise them. On the accommodationist side of the divide, there are also a variety of broad options, two of which stand out. One is the model of multicultural or ‘multinational federalism’ (Kymlicka 2001, 91–119) in which either through classical forms of symmetrical federalism or through made-to-measure arrangements for the diversely aspirational internal parts of ‘Union states’ (in Canada, the UK, Belgium and elsewhere), significant allowance is made for self-government of territories representing different national or cultural identities (Keating 2001; Tierney 2004). Another and more emphatically accommodationist model is supplied by

574  Handbook on global constitutionalism consociationalism, where, in addition to the multiculturalist insistence on a measure of group autonomy, provision is made for cross-community executive power-sharing and minority vetoes at the centre. Consociationalism tends to be associated with political societies that have experienced deep antagonisms, as in the state of Bosnia and Herzegovina or the ‘statelet’ of Northern Ireland (McQuarrie et al 2008, pp. 58–63). A number of concluding observations may be made about constitutionalism’s engagement with pluralism within the confines of the polity. In the first place, there is simply no guarantee that constitutional arrangements will tend in a political pluralist direction. We observed how respect for political pluralism is always a precarious balancing act, and that constitutions can over-invest in cultural forces that favour hegemonic forms of identity. The brief discussion of the dangers of assimilationism made reference to this, but we should acknowledge that constitutional anti-pluralism comes in many forms. As the recent resurgence of authoritarian populism and ‘illiberal democracy’ in Europe and beyond demonstrates (Sajo et al 2022), some of these forms depart from pluralism not as a matter of fine balance but in a quite fundamental way; through a conscious rejection of the liberal freedoms that are one of pluralism’s prerequisites, or through the denial of the basic rights of representation of diverse interests we associate with parliamentary democracy. That is, as in the ‘decent hierarchies’ or ‘outlaw states’ of John Rawls’s (1999) typology, there are many living constitutional models for whom the framework of formal unity is developed and deployed in aid of a material project that actively opposes and represses political pluralism. Secondly, however, there is undoubtedly much in modern constitutionalism that is also supportive of pluralism. We can see, indeed, that two dominant approaches to constitutional design, the integration approach and the accommodation approach, are distinguished not in terms of being pro- or anti-political pluralism, but merely as regards the extent to which, and some of the instruments through which, they acknowledge and channel political pluralism. On either side of this divide, however, there is much in the available methods of constitutional design for dispersing and accounting for political power that may conduce to the generation and preservation of political pluralism. These range beyond the more emphatic pluralist markers such as federal or union state arrangements, fundamental rights catalogues and forms of institutional support for religious diversity, to include many of the staples of modern constitutional architecture, such as the basic forms of representative democracy, commitment to the interpretive autonomy of the separate branches of government (Halberstam 2012, pp. 110–25) and the majoritarian-corrective functions of second legislative chambers. Thirdly, however, we cannot conclude from this that the deployment of the expansive set of pluralism-conducive constitutional design tools is underwritten by a coherent and settled philosophical approach to political pluralism. Instead, the built environment of the constitution is in significant measure under-determined by design philosophy. Constitutional structures tend to evolve gradually, often a patchwork of different design ideas and tools deployed from different periods. And as the key example of federal form demonstrates, even specific individual tools and institutions can have a variable and disputed significance. They are potentially supportive of different candidate pluralism-supportive visions – integrationism and accommodationism – whose abiding rivalry indicates how little agreement there is on how far political pluralism should extend and on what grounds. These two approaches map quite neatly onto the deeper distinction and tension between a classical individually pluralistic liberalism and an approach that gives greater weight to the collectively pluralistic, and that may even stretch beyond the boundaries of a more expansive liberal pluralism. As we shall see, this drift of plu-

Constitutionalism and pluralism  575 ralism as a normative project beyond the boundaries of conventional liberal thought becomes more pronounced as we now turn away from ‘plural constitutionalism’ to consider the external face of constitutionalism’s relationship with pluralism.

THE EXTERNAL APPROACH: CONSTITUTIONAL PLURALISM Constitutional pluralism is concerned with the emergence, as part of a broader globalising trend, of a wide range of normative entities that challenge the monopoly or preponderance of the state-centred, self-contained sovereigntist paradigm of constitutional authority. These entities might take the form of supranational public authorities such as the European Union (EU), the Council of Europe, the African Union or the World Trade Organization; or transnational private authorities such as the Fédération internationale de football association (FIFA) or the International Standards Organization; or hybrid public–private authorities such as the Internet Corporation for Assigned Names and Numbers (ICANN). As noted earlier, what is structurally distinct about this approach is that it refers to a second-order pluralism of normative systems as a whole, rather than a first-order pluralism of institutions within a single such system (for example, Walker 2002, 2015; Krisch 2010; Berman 2012; 2020 Lindahl 2013). The scope of constitutional pluralism, and its relationship to other forms of legal or normative pluralism, is disputed. For the sake of clarity, therefore, some stipulation is necessary. This involves an approach that is restrictive in one respect, but generous in another. On the one hand, consistent with the internal or external distinction, constitutional pluralism should not refer to these forms of legal pluralism that are deemed to operate within a single ‘national time-space’ (De Sousa Santos 2004, p. 92), whether we are talking about, say, the relationship between the official constitutional law of a state legal system on the one hand and, on the other, a body of religious law of a significant internal community of faith, or the common law of some region of the state; or, in the colonial context, the relationship between the imposed law of the imperium and the customary law of the indigenous population. In such cases, though questions of political pluralism of the kind considered in the previous section undoubtedly arise, the final authority of the official constitutional order is widely acknowledged – even if reluctantly in some quarters – and remains largely effective in practice. Instead, constitutional pluralism should be retained only for contexts where the territorial or functional autonomy of each system is such that there is no generally acknowledged hierarchy governing the terms of their exchange, or indeed, any generally authoritative tertium quid to deal with conflicts. On the other hand, once we acknowledge the absence of inter-systemic hierarchy, there seems no satisfactory basis for further distinguishing between specifically constitutional and other forms of external legal pluralism. The addition of the ‘constitutional’ modifier may suggest something about the elevated standing of the institutional parties to the pluralistic relationship, as is the case in the most frequent and familiar use of the constitutional pluralist label to describe legal relations between national courts and legal systems and the unusually powerful court and central institutions of the EU (Avbelj and Komarek 2012; Davies and Avbelj 2018). Alternatively, the label may imply the derivation of the pluralist maxim or orientation from a broader tradition of constitutional thought in infra-state and other settings (Kumm 2009). However, these are mere tendencies, and as there is in fact no clear and undisputed distinction of kind between constitutional and other unqualified forms of legal pluralism in the

576  Handbook on global constitutionalism matter of lateral co-ordination between legal orders, we are better to adopt a more inclusive approach.1 Having done so, however, we are immediately faced with a methodological challenge in mapping such a wide and diversely cultivated field. Just because constitutional pluralism, by definition, lacks a pre-given and settled formula of authority, in looking for explanatory and normative patterns we are bound to focus instead on the uneven, unpredictable and contingent quality of exchanges, and the recurrent need to find agreement and establish closure in situ across a broad range of heterarchical relations between legal orders. Such general principles, if any, as can be fashioned, such bridging mechanisms as may be devised or such common orientations as may be discerned in the new pluralism tend to emerge organically – and sometimes only bilaterally – from the interaction between legal orders and tend to be couched in such broad, fluid and underspecified terms that they require additional refinement or negotiation in order to resolve any concrete dispute. In so far as we are able to identify different strains of constitutional pluralist thought in this highly diverse terrain, or at least different interpretations of the core of such thought, it is instead in terms of a gradation between ‘thin’ and ‘thicker’ – between provisional and ad hoc forms of accommodation, on the one hand, and relatively stable and generalised rules or guidelines, on the other. At the ‘thin’ end of the spectrum we find so-called ‘radical pluralism’ (MacCormick 1993; Krisch 2011). According to this approach, the relationship between different orders neither stems from nor contributes to a general set of pluralist norms but is merely a product of power relations and strategic considerations. Such a relationship might not be considered in legal terms at all, but merely as the outcome of a broader competition of power, influence and collective self-interest; although perhaps, as in some understandings of the EU as a kind of quasi-federal entity in its own right, this legal unsettlement may be seen to be underpinned by a kind of multi-polar institutional grid of constituency representation and mutual accommodation that speaks to some of the same understandings of infra-polity political pluralism as considered above (Walker 2016). Alternatively, to draw further from the well-developed example of relations between the EU and its member states, the radical conception of pluralism may be one for which a legal dimension does exist but only in the form of those bridging mechanisms, such as an inter-court reference jurisdiction, a context-specific principle of subsidiarity, or a division of authority between legislative institutions, that are actively chosen by the parties to the relationship and which remain within their ultimate ‘contractual’ gift. As we begin to take our distance along the pluralist spectrum from this radical pole we encounter types, such as Nico Krisch’s ‘interface norms’ (2010, pp. 285–96), where the focus is on the emergence of very general principles or methodologies of mutual toleration and responsiveness between different orders locked in a recursive relationship of interdependence. Here, emphasis is placed on courts and other institutions developing arm’s length forms of inter-systemic accommodation, ranging from a requirement to ‘take into account’ the norms of the other order, through various forms of conditional recognition of the other norm, to a general

Nico Krisch (2010, pp. 89–103) for example, explicitly distances himself from constitutional language in the development of his pluralist approach, but only after having defined constitutionalism in strong state-centric ‘foundational’ terms. He proceeds to develop a test of the ‘public autonomy’ of those political forms that inhabit his institutional landscape which would, in fact, meet the less exacting standard of constitutionalism of many other analysts. 1

Constitutionalism and pluralism  577 commitment to find a lowest common denominator or ‘incompletely theorized agreement’ (Sunstein 1995) between legal orders. What sets this approach apart from the rawer ‘realism’ of radical pluralism is a search for general value in the very idea of inter-systemic accommodation. In particular, it involves appreciation of what such accommodation might imply for the general balance of transnational power and the checking of unilateral jurisdictional excess, for the encouragement of tie-breaking or dialogue, or, in ways that again recall the broader ambition of infra-systemic normative pluralism, for the equal recognition of different and diverse constituencies and their corresponding legal regimes and institutions. A similar but more explicit attempt to find in external constitutional pluralism a measure of continuity with the ethics associated with an internal constitutional pluralism can be found in the more evolutionary perspective at the heart of Miguel Maduro’s ‘thicker’ idea of contrapunctual law (Maduro 2003). In this approach, which once again draws heavily on the densely interpenetrated example of the relationship between EU law and the national law of its member states, the focus is upon the gradual harmonisation of the different normative elements as a distinct legal melody. Particular reference is paid to the need for mutual adjustment in ultimate search of a justificatory framework that is generalisable across all inter-systemic components without destroying the autonomous integrity of the parts. As with Krisch, there is no a priori normative framework to guide relations. Unlike Krisch, there is close attention to the prospect of an inter-systemic convergence of horizons that extends beyond mere mutual tolerance and accommodation. At the ‘thickest’ end of the spectrum, finally, we find versions of constitutional pluralism that envisage the strongest continuity between the general pluralist constitutional norms internal to a particular constitutional order and trans-systemic norms. Those who see a role across the diverse sites of global legal pluralism for broad principles of participation, accountability, subsidiarity and legality (Kumm 2009), or for a general formula balancing voice, rights and efficiency of substantive outcomes (Halberstam 2009), are normatively pluralist in as much as they recognise the importance both of an ‘individually pluralistic’ framework of human rights protection and of a ‘communally pluralistic’ attention to a diversity of voices within a multi-level global order. Yet they are also universalist precisely in their confidence that one size fits all, at least at a high level of abstraction. They believe, ultimately, that there is no difference in kind, but only in degree, between how we should assess and conduct relations among the various parts of a legal and political community inter se, and how we should assess and conduct relations between different legal and political communities as a whole.

CONCLUSION: A FAMILY RELATIONSHIP? The two modes of constitutional engagement with a plural political landscape – what we have called plural constitutionalism and constitutional pluralism – are clearly far from being entirely unrelated. In some measure, the same sovereign-state-decentring social forces that have produced one have also produced the other. Equally, the tension between the unitary logic of the constitutional form and the material pluralism of its landscape and techniques of engagement applies in both cases, albeit in the first case the formalist logic applies as a single all-embracing closure whereas in the second case it describes, in contrast, a set of mutually exclusive closures. Substantively too, as we have seen above, the kinds of problems that are diagnosed and solutions offered under the two approaches are certainly not unrelated.

578  Handbook on global constitutionalism Yet we should not overstate the closeness of the family relationship. In the first place, sometimes the relationship may actually develop an inverse quality, in that the reaction against the growth of inter-state authority, with its attendant encouragement of constitutional pluralism, may involve a revival of assimilationist or otherwise monist attitudes within affected states. The recent opposition of national populist leaders in Hungary and Poland to the supranational strength of the EU is a case in point (Sadurski, 2019). In the second place, even where do see questions of individual and group autonomy familiar from the internal constitutional context arising in the external domain of constitutional pluralism, and suggesting some of the same answers, we should be slow to draw general conclusions. The sheer novel diversity and open-ended proliferation of that external domain, ranging as it does from a relatively state-like polity such as the EU with its expansive conception of the range and depth of its supranational jurisdiction and citizenship, to restricted functional domains such as ICANN and FIFA with their narrowly interest-specific constituencies of stakeholders, should counsel prudence. The very fact that there are so many contending theories of constitutional pluralism suggests a significant gap between the perceived significance of the puzzle(s) before us and the adequacy of our present solution-finding practice. It would not be an exaggeration to say that many of the most pressing and consequential questions of the legitimate design of global governance in an increasingly post-national world may be gathered under this wide umbrella of constitutional pluralism. That the task is so great and stakes are so high offers one reason why we might be tempted to reinvest heavily in answers that have long been considered appropriate to a state-centred world, but also cautions us to give pause before doing so.

REFERENCES Avbelj, M. and J. Komarek (eds) (2012), Constitutional Pluralism in the European Union and Beyond, Oxford: Hart. Berlin, I. (1969), ‘Two concepts of liberty’, in I. Berlin, Four Essays on Liberty, Cambridge: Cambridge University Press. Berman, P.S. (2012), Global Legal Pluralism: A Jurisprudence of Law beyond Borders, Cambridge: Cambridge University Press. Berman, P.S. (ed.) (2020), The Oxford Handbook of Global Legal Pluralism, Oxford: Oxford University Press. Choudhry, S. (2008), ‘Bridging comparative politics and comparative constitutional law: constitutional design in a divided society’, in S. Choudhry (ed.), Constitutional Design for Divided Societies: Integration or Accommodation?, Oxford: Oxford University Press, pp. 3–40. Dahl, R.H. (1968), Pluralist Democracy in the United States: Conflict and Consent, Chicago, IL: Rand McNally. Davies, G. and M. Avbelj (eds) (2018), Routledge Handbook on Legal Pluralism and EU Law, London: Routledge. De Sousa Santos, B. (2004), Towards a New Legal Common Sense: Law, Globalization and Emancipation, 2nd edn, Cambridge: Cambridge University Press. Galston, W. (2002), Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice, Cambridge: Cambridge University Press. Halberstam, D. (2009), ‘Constitutional heterarchy: The centrality of conflict in the European Union and the United States’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge, Cambridge University Press, pp. 326–55. Halberstam, D. (2012), ‘Systems pluralism and institutional pluralism in constitutional law: national, supranational and global governance’, in M. Avbelj and J. Komarek (eds), Constitutional Pluralism in the European Union and Beyond, Oxford: Hart, pp. 85–125.

Constitutionalism and pluralism  579 Hirst, P.Q. (1994), Associative Democracy: New Forms of Economic and Social Governance, Cambridge: Polity. Hobbes, T. (1651), Leviathan, reprinted 1948, M. Oakeshott (ed.), Oxford: Blackwell. Keating, M. (2001), Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era, Oxford: Oxford University Press. Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford: Oxford University Press. Krisch, N. (2011), ‘Who’s afraid of radical pluralism? Legal order and political stability in the postnational space’, Ratio Juris, 24 (4), 386–412. Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: on the relationship between constitutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge: Cambridge University Press, pp. 258–325. Kymlicka, W. (1995), Multiculturalism, Oxford: Oxford University Press. Kymlicka, W. (2001), Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, Oxford: Oxford University Press. Lindahl, H. (2013), Fault Lines of Globalisation: Legal Order and the Politics of A-Legality, Oxford: Oxford University Press. MacCormick, N. (1993), ‘Beyond the sovereign state’, Modern Law Review, 56 (1), 1–18. Maduro, M. (2003), ‘Contrapunctual law: Europe’s constitutional pluralism in action’, in N. Walker (ed.), Sovereignty in Transition, Oxford: Hart, pp. 501–37. McQuarrie, J., B. O’Leary and R. Simeon (2008), ‘Integration or accommodation? The enduring debate in conflict regulation’, in S. Choudhry (ed.), Constitutional Design for Divided Societies: Integration or Accommodation?, Oxford: Oxford University Press, pp. 41–88. Miller, D. (1995), On Nationality, Oxford: Oxford University Press. Muniz-Fraticelli, V. (2014), The Structure of Pluralism: On the Authority of Associations, Oxford: Oxford University Press. Rawls, J. (1996), Political Liberalism, New York: Columbia University Press. Rawls, J. (1999), Law of Peoples, Cambridge, MA: Harvard University Press. Rosenfeld, M. (2010), The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community, London and New York: Routledge. Sadurski, W. (2019), Poland’s Constitutional Breakdown, Oxford: Oxford University Press. Sandel, M. (1982), Liberalism and the Limits of Justice, Cambridge: Cambridge University Press. Sajo, A., R. Uitz and S. Holmes (eds) (2022), Routledge Handbook of Illiberalism, Abingdon: Routledge. Sunstein, C. (1995), ‘Incompletely Theorized Agreements’, Harvard Law Review, 108 (7), 1733–72. Taylor, C. (1992), ‘The politics of recognition’, in C. Taylor (ed.), Multiculturalism, Princeton, NJ: Princeton University Press, pp. 25–74. Tierney, S. (2004), Constitutional Law and National Pluralism, Oxford: Oxford University Press. Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–60. Walker, N. (2010), ‘Rosenfeld’s plural constitutionalism’, International Journal of Constitutional Law, 8 (3), 677–84. Walker, N. (2015), Intimations of Global Law, Cambridge: Cambridge University Press. Walker, N. (2016), ‘Constitutional pluralism revisited’, European Law Journal, 22 (3), 333–55.

Index

9/11 440, 443–4 abortion 78, 471, 558–9, 562 absolute power 311, 546 accountability 17, 38, 63, 92, 166, 171, 258, 265, 267, 290, 311, 313, 315, 320, 367, 378, 425, 428, 445, 497, 512, 522, 525–6, 547, 577 Achaean League 28–30 Adams, J. 10 Adler, E. 119–20 administrative law 86, 132, 173–4, 232, 234, 259, 269, 277, 280–82, 284–5, 290, 350, 378 Afghanistan, US invasion of 1–2 African Charter on Human Rights 442 African Union 191, 575 agency 10, 27, 41–2, 54, 69–70, 108, 123, 148, 154, 160, 196, 244, 258, 294–5, 373, 376, 400, 416, 449, 463, 534–5 agents of change 102, 373–89 Allott, P. 278 Althusius, J. 448, 457 American Center for Law & Justice 562 American Civil Liberties Union 377 American Constitutional Convention 10 American Convention on Human Rights 442 American Revolution 23, 65, 68–9, 168, 193, 298, 365, 572 Amphictyonic League 28, 30 Anghie, A. 171, 548 Annan, K. 400, 460, 468, 470 Appiah, K. 97 Aquinas, T. 8, 211 Arab League 561 Archibugi, D. 96 Arendt, H. 335 Aristotle 6–7, 9, 11, 14, 23, 210, 245, 309 see also Stoics Arminius 49 Asad, T. 563 Atrey, S. 194–5, 198–9 Austin, J. 212–13, 245 Austin, R. 467 authoritarianism 7, 11, 84, 250, 266, 268, 271–2, 430–32, 443–4, 505, 574 Azmy, B. 375 Bachelet, M. 380–81

Backer, C. 560 Bain, W. 158 Baines, B. 188, 191, 196, 198, 200 balance of power 3, 11–12, 17, 52, 104, 106, 153, 157, 160, 240, 308–16, 443, 460–61 see also separation of powers Ban, K.-m. 486 Banda Islands 47, 51–4 Barak-Erez, D. 200 Basel Committee on Banking Supervision 282, 284 Batros, B. 381 Baxi, U. 146, 148 Bell, D. 189 Bell, G. 195–6 Belmessous, S. 47, 49 Benedict XVI, Pope 558–9 Benveniśtî, E. 269 Berkel, D. van 385 Berlin, I. 559, 569 Besson, S. 220, 418 Biden, J. 110, 431, 444 bilateral investment treaties 349, 356, 551 bilateralism 268–9, 292, 412, 415 Bilchitz, D. 545 Bill of Rights (US) 77, 220 Birdsall, A. 529 Blackwater 283 Bloch, M. 38 Blount, P.J. 533 Bodansky, D. 220 Bodin, J. 63, 135 Bogotá Declaration 535 Bolton, J. 470 Borah, W. 18 Bosco, D. 514 Boutros-Ghali, B. 172 Bretton Woods 179, 468, 471 Brexit 1, 265, 325, 431, 492–3, 497–8, 501 Brock, L. 398 Brown, G.W. 97 Brown v Board of Education 377 Brunnée, J. 119–20 Buchanan, A. 336 Bull, H. 107, 155, 158, 160 Bush, G.W. 109–10, 431–2, 470–71 Buss, D. 192 Buzan, B. 160

580

Index  581 Calhoun, C. 442 Canadian Supreme Court 81, 449 Cançado-Trindade, A.A. 215 Cannizzaro, E. 355 capitalism 55, 93, 170–71, 175, 177, 180, 433, 455, 532, 542, 545–6, 548–9, 551 Cardwell, P. 501 Casanova, J. 557 Center for Constitutional Rights 375, 381 Cerfaux, L. 35 Charlesworth, H. 193–4, 198–9 Chatterjee, P. 170 Cheng, B. 217 Chinkin, C. 194 Christian Alliance to Defend Freedom 562 Cicero, M.T. 7, 23–5, 27, 30–32, 94, 210–11 citizenship 13, 31, 33, 95, 191, 430, 468, 495, 498, 503–4, 537, 563–6, 578 Clark, I. 15, 155, 160 ClientEarth 386 climate change 123–4, 244, 266, 269, 275, 292, 373–4, 377–87, 426, 432, 500 Clulow, A. 52 Coen, J.P. 53–4 Cohen, J. 14 Coke, E. 67–8 Cold War 103, 105, 109, 117, 167, 172, 175, 193, 298, 370, 397, 425–6, 428, 474, 530, 532, 535, 544, 546 Colley, L. 170 colonialism 4, 47–9, 54, 67–8, 148, 161, 166, 168–71, 175, 192, 196, 200, 249, 545, 548–9, 552 Colón-Ríos, J.I. 373 Committee of Space Research 539 complementarity 333–6, 339, 510, 516 Comprehensive Economic and Trade Agreement 320–21, 505, 549 Conference on Disarmament 538 Congress of Vienna 38 Connell, R. 175 Consortium for Execution of Rendezvous and Servicing Operations 539 constituent power 3–5, 27, 60, 318–28, 461, 490, 509 in the EU 323–5 and political institutions 326–8 and supra-state constitutionalization 321–3 traditional view 319–21 weakening of 68–70 see also pouvoir constituant Constitutional Court of South Africa 461

constitutional law 59, 61–2, 66, 68, 70–71, 142, 148, 166–8, 171, 173, 176, 178–80, 186–91, 194, 198–9, 201, 208–9, 212–13, 219–20, 223, 227, 255, 258–60, 279, 331–41, 346, 348, 353, 355, 363–5, 367–8, 378, 384, 429, 451, 455, 575 constitutional patriotism 14, 83–4, 103 constitutional pluralism 91, 160–61, 229, 258, 280, 303, 418, 420, 543, 566, 568–78 constitutional principles 11–15 Constitutional Treaty 496–7 constitutionalism ancient worlds 6–8, 23–33 see also Greek law; Roman law from below 145–9 cosmopolitan 14, 91, 93–5, 98–9 critical theory 14, 122, 140–49, 286 early modern 8–9, 46–55 English School 106–7, 152–62 Enlightenment 9–10, 59–72, 76, 86, 120, 141, 146, 246–7, 552, 563 feminist approaches to 185–201 historical antecedents 5–11, 76–86 legal 225–36 medieval 8, 35–44, 309 modern 10–11, 76–86 new 141–8, 456 and outer space governance 4, 16, 431, 529–40 postcolonial 166–80 realist perspectives on 129–36 rule of law see rule of law written versus unwritten 5, 363–70, 508 constitutionalization 3, 15–17, 89, 95–6, 99, 122–3, 187–8, 193, 199, 240, 280, 321–3, 331 constructivism 115–25 contestation 1–2, 5, 12–13, 15–17, 80, 89, 118–20, 140, 157, 161, 166, 169, 174, 178, 190, 199, 246, 248, 250, 276, 303, 316, 327, 373, 376–7, 379–81, 383–9, 533–4, 540, 552–3 Convention on the Elimination of All Forms of Discrimination against Women 187, 189–90 Cooper, D. 197 corporatism 71, 171 cosmopolitan constitutionalism 14, 91, 93–5, 98–9 cosmopolitanism 14, 89–99 legal 14, 90–94, 97, 99 cosmos 24–5 Council of Europe 176, 272, 322, 339, 479, 575 countermeasures 217, 221, 348, 350–52, 355–6, 359, 384

582  Handbook on global constitutionalism Court of Justice of the EU 81–2, 313, 411, 413–14, 485, 490–93, 495–7, 501–6 Courthope, N. 53 Covell, C. 95 Covid-19 pandemic 265, 271, 432, 441, 443–5, 499, 501, 504 Craig, P.P. 314 criteria of legality 241–4, 246, 250–51 critical constructivism 15, 116–24, 399 critical theory 14, 122, 140–49, 286 cultural pluralism 97 culture wars 559–62 Cutler, C. 547–8 Czempiel, E.-O. 426 Dawson, M. 314 De Jure Belli ac Pacis 46, 50–51 De Jure Praedae 46, 51 De Wet, E. 131–2, 187, 194 decisionism 9, 438–9, 455 Declaration of Independence (US) 65, 67, 103, 219 Declaration of the Rights of Man and of the Citizen 461 Declaration on the Rights of Man (France) 77 Decretum 39–40 Delors, J. 494 democracy 1–3, 6–7, 11, 15, 17, 23, 27, 29, 32, 76, 78, 83, 116, 142–3, 166, 170, 178, 188, 218, 258, 269, 276, 283, 291, 294–5, 314, 336, 338, 340–41, 411, 425, 427, 439, 449, 461, 465, 467, 485, 495–7, 500, 504, 526, 548, 557–8, 574 cosmopolitan 91, 93, 96 Dicey, A.V. 451, 548 dignity 84, 495 dispute settlement 166, 240, 322, 348, 356, 412–13, 419, 519–20, 524, 544 divine law 211 domestic human rights law 331, 333–7, 417–19 Donaldson, M. 286 duality 197, 331 Dunoff, J.L. 131–2, 154, 257, 259, 461, 521 Dutch East India Company 46–9, 51–4 Dutch Supreme Court 380, 383–4 Dworkin, R. 12, 81 Dyzenhaus, D. 245 early modern constitutionalism 8–9, 46–55 Ecuadorian Constitution 148 elections 196, 299, 325, 416, 425, 430, 433, 452, 466–7, 497–8, 503–4 emergency situations 245, 314, 349, 437–45, 499 English East India Company 47–9, 51–4 English School 106–7, 152–62

Enlightenment 9–10, 59–72, 76, 86, 120, 141, 146, 246–7, 552, 563 Enloe, C. 198 environmental issues 155, 287, 378, 521, 531, 538, 551 climate change 123–4, 244, 266, 269, 275, 292, 373–4, 377–87, 426, 432, 500 environmental law 166 eternal law 211 Eurocentrism 122, 146, 154, 196, 247, 251 European Center for Constitutional and Human Rights 374 European Central Bank 373, 441, 502 European Coal and Steel Community 254 European Committee for Social Rights 558–9 European Convention on Human Rights 347–9, 357, 383, 442, 501–2, 562 European Court of Human Rights 60, 81, 159, 272, 322, 336, 339–40, 356–7, 383–4, 417–19, 512, 562, 564 European Court of Justice 60, 159, 322, 324–5, 347, 473 European Economic Community 426 European Free Trade Association 498 European Parliament 313, 324–5, 430, 494, 497 European Space Agency 530 European Stability Mechanism 499 European Union 1, 12, 16, 18, 81–4, 134, 176, 191, 253, 257, 261–2, 280, 300, 302–3, 308, 312–15, 319–27, 347, 350, 383, 410, 413–14, 428, 430–31, 441, 443, 445, 449, 451, 453–4, 456–7, 460, 473, 478, 485, 490–506, 519–22, 524, 526, 543, 560–61, 575–7 Brexit 1, 265, 325, 431, 492–3, 497–8, 501 European University Institute 479 Euroscepticism 431, 498 see also Brexit exceptionalism 30, 449, 492 executive 11–12, 37–9, 43, 103, 222, 247, 260, 283, 310, 314–15, 319–25, 410–14, 418, 424, 428, 430, 437–45, 452, 473, 479, 501, 519–20, 537–8, 574 Falk, R. 132 Family Watch International 562 Farabundo Martí National Liberation Front 467 Fassbender, B. 13, 96, 131, 222, 477, 483–4, 509 Federal Communications Commission 539 federalism 12, 96, 188, 426–7, 448–57, 460, 573 Federalist Papers 10, 28, 69, 365, 424, 449, 451–3 Fédération internationale de football association 575, 578 feminism 14, 185–201, 275, 286

Index  583 feudalism 37–8, 40, 71, 170 Fierke, K.M. 198 financial crises 2008 global financial crisis 145, 426, 500 Greek financial crisis 83 Finnemore, M. 119 Finnis, J. 214 Fiscal Compact Treaty 314 force, use of 4, 32, 105, 109, 208, 213, 220, 223, 301, 352, 368, 395–403, 418, 424, 466, 483, 534, 538 foreign policy 96, 156, 319–20, 425, 497, 560 formalism 129–31, 136, 233–6, 249–50, 268, 492, 509, 543, 549, 577 Foucault, M. 289 fragmentation 133, 174, 217–18, 221–2, 227–9, 257, 301–2, 313, 356, 358, 364, 419–20, 444, 490, 538, 544 Franck, T. 172, 462 Frank, J. 131 Franklin, B. 473–4 free trade 85, 168, 171, 177, 179, 320, 351, 354, 356, 411, 413, 415, 546 freedom of assembly 335, 416 freedom of speech 29, 335 French Constitution 218, 254, 564 French East India Company 50 French Revolution 12, 23, 64–7, 69–70, 168, 170, 193, 195, 298, 319, 365, 461, 546, 572 Friedman, M. 546 Friedmann, W. 226, 278, 369 Fuller, L. 243, 246–7, 295, 297 functionalism 13, 133, 177, 179, 253–62, 277, 279, 425, 477–87, 492, 520 G20 430, 479 Gago, V. 201 Gardam, J. 217 Gardner, R. 256 gender 169, 185–201, 564, 569, 571 General Agreement on Tariffs and Trade 353–4, 356, 473, 519–20 general principles of law 215–20, 301 Geneva Conventions 402 Geneva School 178 genocide 173, 397, 461 Genocide Convention 397, 461 German Constitution 455–6 German Federal Constitutional Court 455–6, 493, 500, 502–3 German reunification 83, 497 German Revolution 79 Giddens, A. 118 Gill, S. 546 Ginsburg, T. 272

Glanville, L. 403 Glenn, P. 97–8 Global Administrative Law 232 Global North 168, 171, 175–7, 186, 192–3, 275, 532, 542, 545, 551 global politics 2, 6, 89, 115, 162, 292, 395, 398–402, 438 Global South 140, 146–8, 167–9, 172, 174–9, 190, 192, 275–6, 532, 535–6, 542, 545, 551, 561 globalization 95, 97–8, 105, 140–48, 175, 265, 268, 346, 440–42, 526, 543, 556, 559–62, 564 Glorious Revolution 546 Goethe, J.W. von 130 Goldsmith, J. 271 Gordon, M.M.L. 194 Gortyn 26 Gouges, O. de 195 Gramsci, A. 175 Gratian 39–40 Grear, A. 194, 198 Great Depression 130 Greek law 6–7, 23–30, 32–3, 210, 364 Greenpeace 286 Gregorian reform movement 36–7, 39 Grimm, D. 505 Grotius, H. 8–9, 46–51, 54, 94, 211–12 Grundnorm 61, 77, 157, 214, 245 Gustavus Adolphus, King of Sweden 50 Habermas, J. 14, 76–8, 83–4, 324–5, 477, 483, 556 Haitian Revolution 168, 170 Hallstein, W. 492 Hamilton, A. 10, 69, 365, 438, 445, 449, 453 Hammarskjöld, D. 473, 481 Hansen, J. 385 hard law 282 Hart, H.L.A. 155, 214, 363 Harvey, D. 544 Hayek, F. von 546 Heathcote, G. 192–3, 195–6, 198–200 Hegel, G.W.F. 10, 97 Held, D. 97 Helfer, L. 461 Hellenic League 30 Hervey, T. 501 Higham, C. 378 Hobbes, T. 8–9, 63, 77, 92, 129, 132, 135, 153, 212–13, 424, 438, 570 Hohfeld, W. 12 Houghton, R. 188, 196 Human Development Index 290 Human Life International 562

584  Handbook on global constitutionalism human rights 2, 4, 12–13, 23, 69–70, 76–7, 81–2, 84, 93, 96, 131, 143, 155, 173, 175, 187–9, 191, 200, 218, 230, 257, 265, 275, 280, 283, 287, 291, 294–5, 303–4, 306, 347, 351, 358, 377–8, 380–82, 384, 395–403, 424, 427–30, 461, 479, 485–6, 513–14, 526, 531, 558, 560–61 African Charter on Human Rights 442 American Convention on Human Rights 442 courts 410–11, 413, 416–18 domestic human rights law 331, 333–7, 417–19 European Convention on Human Rights 347–9, 357, 383, 442, 501–2, 562 European Court of Human Rights 60, 81, 159, 272, 322, 336, 339–40, 356–7, 383–4, 417–19, 512, 562, 564 Inter-American Court of Human Rights 60, 339, 417–19 international human rights law 59–62, 135, 288, 331–41, 381, 396, 401–3, 414, 416–19, 440 United Nations Human Rights Council 509, 561 Universal Declaration of Human Rights 59, 77, 430 see also individual courts Hurrell, A. 15, 155, 366 identarian theory 85 Ikenberry, G.J. 14, 101–2 imperialism 47, 49, 54, 90, 111–12, 135, 166–7, 169, 171, 175, 178–9, 548, 561 indigenous peoples 47–9, 53–4, 148 Innocent III, Pope 42 institutional balance 6, 308–16 integration 36, 79, 256, 261, 318, 325–6, 412, 418, 426, 440, 460, 472–4, 477, 490–95, 498, 500–501, 504–6, 520–22, 525–6, 534, 549, 552, 563–4, 572–4 interactional law 241, 244, 250–51 Inter-Agency Debris Coordination Committee 539 Inter-American Court of Human Rights 60, 339, 417–19 Intergovernmental Panel on Climate Change 123, 382 intergovernmental relations 452–3 International Centre for the Settlement of Investment Disputes 352, 359 International Commission on Intervention and State Sovereignty 398, 400 international constitutionalism see constitutionalism

International Convention for the Regulation of Whaling 350 International Court of Justice 46, 159, 213, 215–18, 221, 350, 356, 412–15, 462–5, 473, 481–3, 485, 538 Gabçikovo-Nagymoros decision 221 Lockerbie case 415, 465, 485 International Covenant on Civil and Political Rights 349, 357, 415, 442 International Covenant on Economic, Social and Cultural Rights 415 International Criminal Court 4, 16, 46, 131, 133, 161, 359, 381, 402, 412, 414–15, 430–31, 491, 508–17 International Criminal Tribunal for the former Yugoslavia 512 International Development Goals 470–71 international human rights law 59–62, 135, 288, 331–41, 381, 396, 401–3, 414, 416–19, 440 international humanitarian law 159, 351–3, 357–8, 396, 401–3 international institutional law 176, 194, 230, 277–9, 281 international institutions 4, 15, 96, 98, 136, 178, 185, 230, 265–73, 276–9, 282–3, 285, 287–92, 300, 304, 333–4, 400, 403, 491 see also individual institutions international law 13, 59, 65–6, 89, 91–3, 143, 152, 157–8, 240, 249–51, 257, 281–6, 302–6, 320–21, 352–6, 363, 367–9, 428, 482–3, 514, 523–5 and constructivism 115–16, 118–19, 122 and feminism 186–91, 193–4, 199–201 international human rights law 59–62, 135, 288, 331–41, 381, 396, 401–3, 414, 416–19, 440 international humanitarian law 159, 351–3, 357–8, 396, 401–3 international institutional law 176, 194, 230, 277–9, 281 international public law 4, 133, 135, 267, 269–70, 273, 276–8, 281, 284, 290–91, 333 international trade law 178, 272, 322 judicial review see judicial review and legal constitutionalism 226–30, 234 and natural law 208–9, 212–19 and post/colonialism 166–8, 171, 174, 176, 178–80, 249 and realism 131, 136 rule of law see rule of law sources of 174, 234, 350, 363, 413, 461 space law 4, 16, 529–40

Index  585 Third World Approaches to 173, 176, 200, 276, 548 International Law Commission 133, 174, 217–19, 221–2, 346, 348, 368 international legal theory 13, 90, 194 International Monetary Fund 292, 470, 472, 478–9, 501, 551 international organizations 4, 15, 17, 89, 134, 157, 160, 213–14, 246, 253, 256, 265–6, 272, 277–8, 281, 286–7, 290, 300, 302, 432, 441–2, 444–5, 463, 473, 477–80, 482–3, 485–6, 519, 522 see also individual organizations international public authority 13, 168, 265–92 international public law 4, 133, 135, 267, 269–70, 273, 276–8, 281, 284, 290–91, 333 international relations theory 1, 4, 6, 14–16, 118, 120, 142–3, 161, 194, 198, 243, 253, 375 see also individual theories International Religious Freedom Act 560 international society 4, 15, 65, 106, 123, 136, 152–62, 227, 240–41, 243, 246, 248–51, 366, 376, 508 International Telecommunications Union 530, 536, 538 international trade law 178, 272, 322 International Tribunal for the Law of the Sea 351–2, 359 Internet Corporation for Assigned Names and Numbers 575, 578 investment protection law 166, 168, 177, 348–50, 352–3, 356, 360 Irving, H. 189, 195 Isiksel, T. 261–2 Islam 500, 556, 563, 565 ius ad bellum 395–6, 402 ius fetiale 31–3 ius in bello 396, 402 Jabri, V. 198 Jackson, R. 15, 155 Jacqué, J.-P. 312, 314 Japan 37–8 Jay, J. 10 Jefferson, T. 10, 65 Jellinek, G. 213 Jenks, C.W. 226 Jessup, P. 428 John, King of England 37 John of Salisbury 130 Johnstone, I. 467 Jones, E. 193, 198–9 judicial review 10, 12, 68, 142, 144, 218, 258, 260, 285, 299, 410–20, 427, 429, 432, 485–6, 519, 524

standards of 411, 415–16, 420 jus cogens 187, 194, 214–18, 220–22, 229, 233, 302, 367, 415, 461, 533 jus gentium see law of nations just war 26–7, 31, 47, 51, 54 Kahana, T. 200 Kant, I. 9–10, 14, 64, 70, 77, 79, 91–2, 94–5, 111, 123, 130, 153, 213, 298, 309, 426–7 Keeling, W. 53 Keens-Soper, M. 154–6, 158 Kelsen, H. 76–7, 157, 214, 245, 275, 286, 305, 437, 439, 558, 560, 566 Kennedy, D. 49, 115, 132, 276, 543 Keohane, R. 104–5 Keynesianism 145 Khan, T. 380–81, 385 Khmer Rouge 467 Kingsbury, B. 286 Klabbers, J. 89, 256, 277–8 Knop, K. 190 Koselleck, R. 175 Koskenniemi, M. 89, 136, 174, 274, 312, 548 Kosovo conflict 398 Kratochwil, F. 117–18 Krisch, N. 136, 576–7 Kula, L. 200 Kumar, V. 193 Kumm, M. 133, 418, 551 Laeken Declaration 499 Lam, J.D. 53 Lamy, P. 522 Lang, A.F. Jr. 3, 240, 457, 460, 529 Langton, S. 37 Las Casas, B. de 94 Lasswell, H.D. 132 Lauterpacht, H. 129, 305 law of nations 51, 65–6, 95 League of Nations 17–18, 28–30, 46, 154, 172, 213, 426, 464, 477, 479, 482 legal constitutionalism 225–36 legal cosmopolitanism 14, 90–94, 97, 99 legal forms 169, 225–36, 295 legal pluralism 33, 93, 98, 159, 259, 270, 274, 301–3, 308, 310, 333–4, 336–7, 411, 559 legal realism 92, 130–33, 136, 268 legal theory 240–51 legalism 7, 17, 30, 93, 129, 131, 135, 178, 298, 305, 309, 504 legality, practice of 119, 240–41, 243–4, 246, 250 legislatures 424–33 legitimacy 298–300, 320 Leibniz, G.W. 63–4, 70 lex mercatoria 270–71

586  Handbook on global constitutionalism LGBTQ+ rights 2, 561–2 Liability Convention 539 liberal internationalism 1, 92–4, 108–11, 265–7, 309 liberal pluralism 570–71, 574 liberal theory 1, 14, 101–12, 118, 193 liberalism 1–2, 93, 101, 103, 110, 169–70, 187, 247, 546–7, 553, 556–7, 564, 570, 574 Lino, D. 548 litigation networks 16, 373–89 Livy 23, 27, 31–2 Llewellyn, K.N. 131 Lobel, J. 375 Locke, J. 8–9, 38, 67, 77–8, 212, 319–27 Lockerbie case 415, 465, 485 Loewenstein, K. 365 Loughlin, M. 26–7, 122, 318 Louis XIII of France 50 Lubanga Dyilo, T. 509, 511–14 Lundstedt, A.V. 131 Luxemburg, R. 548 Lykourgos 25–6 Macdonald, J.A. 452 Machiavelli, N. 212, 309, 438 MacKinnon, C. 189 MacKinnon, D. 155 Madison, J. 10, 27–8, 30, 35, 315, 424, 451–2, 461 Maduro, M. 577 Maggi, G. 522–4 Magill, E. 309, 311 Magna Carta 37–8, 365 Mandela, N. 466 Manhattan Declaration 557 Marcus Aurelius 24–5, 94 Marshall, J. 10, 66, 68 mass atrocities 395–403 material constitution 152, 156–7, 331 Maurice, Prince of Orange 50 Mayall, J. 155 Mazower, M. 17–18, 172 McCrudden, C. 561 McDougal, M. 131–2 McIlwain, C. 5 meaning-in-use 14, 16–17, 119, 380 medieval constitutionalism 8, 35–44, 309 Melzer, P. 196 Metaclad 550 methodology 91, 186, 201, 220, 228, 253, 259–60, 326, 374–5 Meyer, P. 537–8 Michelman, F. 461 Millennium Development Goals 460, 467–73 Mitrany, D. 255–6, 277–8

Möller, K. 544 Monnet, J. 492 Montesquieu 9, 11, 28 Montevideo Convention 249 Montreal Convention 465 Morelli, M. 522–4 Morgan, M. 191 Morgenthau, Hans J. 131–2, 134–5 Mortati, C. 152, 156–7, 161 Müller, J.W. 490 Muller, T. 154–5 Mureinik, E. 360 Murray, C. 189 National Association for the Advancement of Colored People 377 natural law 8, 32, 51, 63, 69, 92–5, 208–23, 227, 233, 296–7, 320, 326 Navari, C. 155, 157, 160 Nazism 84, 171–2 Nehru, J. 175 neocolonialism 542–3, 545, 548–9, 551–3 neo-conservativism 109–10 neoliberalism 93, 133, 140, 142–7, 153, 159, 178, 265, 276, 416, 433, 456, 542–53 Nesiah, V. 192, 198 networks 4, 15–16, 25, 185, 189–91, 193, 199, 254, 267, 283, 373–89, 536, 562 new constitutionalism 141–8, 456 Nic Shuibhne, N. 493 Nicolas of Cusa 8 Nietzsche, F. 132, 169 noble savage 47–8 non-governmental organizations 4, 15, 85, 398, 471, 509, 560–61 Nordic Investment Bank 478 normative change 17, 121, 373, 375–6, 379–88 normative order 17, 77, 121, 136, 318, 388, 564 normativism 189, 439 normativity 117, 120–21, 123–4, 129, 136, 193–4, 213–14, 222, 242, 258–9, 274, 332, 375–6, 387, 418–20, 439, 543 North American Free Trade Association 348 North Atlantic Treaty Organization 18, 398, 400, 428, 478, 500 Nuremberg Military Trials 171 Nye, J. 104–5 Oakley, F. 8 Obama, B. 110, 431 Ocampo, L.M. 512–13 O’Donoghue, A. 188, 196 Oldenbarnevelt, J. van 49 Olivecrona, K. 131 Onuf, N. 117

Index  587 Operation Restore Hope 397 Orbán, V. 504–5, 565 Orford, A. 116 Organisation for Economic Co-operation and Development 289–90, 470 Organization for Security and Co-operation in Europe 278 Organization of American States 478 Organization of Petroleum Exporting Countries 478 Otto, D. 194, 196, 198–9 outer space 4, 16, 431, 529–40 Outer Space Treaty 529–40 Outright Monetary Transactions 502 Oxenstierna, A. 50 pacta sunt servanda 46, 51, 54, 158, 214–15, 531 Paiement, P. 381–2 Paine, T. 10, 26 papacy 36, 39–42, 44, 558–9 Paris Agreement 382 Paris Club 479 Patton, P. 49 peacekeeping 440, 460, 466–7 Pedersen, O.W. 384 Peisistratos 27 Pella, J. 160 Perez, O. 376, 388 Permanent Court of Arbitration 46, 410 Permanent Court of International Justice 213, 410, 415 permanent sovereignty over their natural resources 179 Peters, A. 89, 96, 221, 258–9, 401–2, 418 Petersmann, E.-U. 178 Philip II, King of Spain and Portugal 47, 51, 54 Philip of Macedon 28 Philpott, D. 560 Plato 6–7, 23, 130, 210, 296 see also Stoics pluralism 16–17, 90, 97, 148, 155–6, 228, 286, 355, 486, 495, 547, 557 constitutional 91, 160–61, 229, 258, 280, 303, 418, 420, 543, 566, 568–78 cultural 97 legal 33, 93, 98, 159, 259, 270, 274, 301–3, 308, 310, 333–4, 336–7, 411, 559 liberal 570–71, 574 pluralism-solidarism distinction 152–3, 158–9, 162 political 568–76 religious 557, 559–60 value 559–60 Poland 61 politeia 23–7, 364

political economy 16, 143, 145, 168, 175, 177–80, 268, 275–6, 542–53 political pluralism 568–76 political realism 15, 129–30, 132–6, 209, 211–15 Polybius 7, 23, 26, 28–30, 309 positive law 26–7, 80, 92, 96, 129, 208–23, 244, 247, 281, 294, 296, 303, 363–4, 375, 387–8 positivism 13, 46, 60, 63–4, 76–84, 86, 92, 118–19, 121, 129, 145, 155, 157, 209, 211–14, 221, 232–3, 236, 245–6, 248–50 Posner, E. 271 postcolonialism 4, 14, 49, 122, 166–80 Pouliot, V. 119–20 Pound, R. 130 pouvoir constituant 4, 12, 17, 32, 121, 134, 262, 280, 319, 321–7, 367, 457 see also constituent power poverty 276, 287, 305, 468–72 power absolute 311, 546 balance of 3, 11–12, 17, 52, 104, 106, 153, 157, 160, 240, 308–16, 443, 460–61 constituent see constituent power, pouvoir constituant separation of 2–5, 7, 9, 11–12, 37, 67, 82, 89, 135, 186, 188, 218–22, 240, 246, 250, 257–8, 310–13, 315, 320, 373, 379, 437–8, 440, 442–3, 445, 457, 461, 490–91, 505, 509–16 practical reason 26, 64, 97, 102, 245–6, 309 practice of legality 119, 240–41, 243–4, 246, 250 Prebisch, R. 175 Preuss, U.K. 131, 324 Price, R. 111 primary institutions 152–3, 158–62 private law 41–2, 84, 168–9, 178, 180, 227, 268–72, 283–5, 333, 414, 547 see also private–public divide private property 269, 538, 552 private–public divide 142–3, 169, 178, 192, 275, 281, 283–5, 542, 545–9, 552–3, 575 Programme for International Student Assessment 290 property rights 38, 41, 55, 158, 168, 177, 288, 349, 538, 546 proportionality 13, 346–60 protectionism 271, 520–22, 546 public interest 143, 284, 286, 312, 351–6, 360, 375, 529 Public International Unions 425 public opinion 266, 271, 278, 284–7, 291–2 publicness 283–7 public–private divide 142–3, 169, 178, 192, 275, 281, 283–5, 542, 545–9, 552–3, 575

588  Handbook on global constitutionalism Puetter, U. 399 Pufendorf, S. 63, 94 Quijano, A. 175 Radbruch, G. 297 raison de systéme 156 rational choice approach 118, 268, 271–3 rationalism 63–4, 70, 103, 110, 119, 154, 174, 243, 272, 315, 325, 439 Rawls, J. 76–8, 102–4, 557, 569–70, 574 Raz, J. 288, 297 Reael, L. 53 realism 1, 92, 104, 120, 129–36, 211–15, 268 legal 92, 130–33, 136, 268 political 15, 129–30, 132–6, 209, 211–15 Realpolitik 129, 132 Rechsstaat 79, 424 reflexivity 122–4 refugee crisis 83, 292 regional human rights courts 410–11, 413, 416–17 regionalization 152, 161–2 Reinsch, P. 277, 478 religion 8, 36–42, 49, 63, 80, 154, 208–12, 332, 335, 433, 556–66, 569, 571 Islam 500, 556, 563, 565 papacy 36, 39–42, 44, 558–9 religious pluralism 557, 559–60 Responsibility to Protect 4, 16, 160, 382, 395–6, 398–403, 430, 432 Reus-Smit, C. 155 Richelieu, Cardinal 50 Riker, W. 448 Robespierre, M. 70 Roman law 7–8, 11, 23, 30–33, 38–41, 43, 210–11, 285, 364 Root, E. 17 Rosenau, J. 426 Rosenfeld, M. 311, 313, 569–70 Ross, A. 131 Rousseau, J.-J. 47–8, 68, 70, 77, 309, 426–7 Rubio-Marín, R. 188–9, 191, 196–7, 199 Ruggie, J. 117–18 rule by law 11, 294–7, 427, 431 rule of law 2–3, 9, 11, 14, 17, 23, 36–7, 43, 47, 76, 143, 188, 219–20, 226, 234, 240–51, 257, 259, 265, 280, 294–306, 314, 359, 373, 424–5, 431, 437, 441–2, 457, 460, 486, 490, 496, 509, 513, 531–4, 560 rule of persons 296 rule of reason 76, 294, 296–7 Russia–Ukraine war 1–2, 18, 161, 167, 241, 305, 395, 500, 505 Rwandan genocide 173, 397

Sabin Center for Climate Change Law 377–8 Said, E. 169 same-sex marriage 558 Santos, B. de S. 145, 147, 175, 177 Sapiano, J. 198 satellites 30, 529–36, 539 Sayre, F.B. 478 Schermers, H.G. 478 Scheuerman, W.E. 538 Schiller, F. 130 Schmitt, C. 78, 83, 85, 157, 245, 323, 433, 439–40, 558, 563, 566 Schumann, R. 492 secondary institutions 152–3, 158–62 secularism 557, 559, 563–5, 573 self-interest 23, 27, 29, 32, 92, 94, 106, 147, 272, 274, 284, 286, 341, 546, 576 separation of powers 2–5, 7, 9, 11–12, 37, 67, 82, 89, 135, 186, 188, 218–22, 240, 246, 250, 257–8, 310–13, 315, 320, 373, 379, 437–8, 440, 442–3, 445, 457, 461, 490–91, 505, 509–16 see also balance of power Setzer, J. 378, 385 Shakman Hurd, E. 561 Sieyes, E. 319–22, 324, 326–7 Sieyès, E.J. 12, 68–70, 319–23, 326–7 Simma, B. 483 Singh, N. 478 Single European Act 494, 497 slavery 54, 79 Slobodian, Q. 178 Smith, A. 67, 170, 546 Smith, K. 397 Smuts, J. 172 social contract theory 4, 8, 48, 77, 79–81, 96, 212, 326, 365 social norms 208, 240, 242, 384–5 sociological description 132, 136 sociology of knowledge 115, 121 soft law 250, 282, 285, 333, 471–2 solidarism 152–3, 158–61 Solon 26–7 sources of international law 174, 234, 350, 363, 413, 461 South African Constitution 545 South West African Peoples Organization 467 space law 4, 16, 529–40 SpaceX 536, 539 Spanish Constitution 81 Spanish Supreme Court 81 Spivak, G.C. 200 Stahn, C. 509 Stalinism 84 standards of judicial review 411, 415–16, 420

Index  589 Stanton, E.C. 195 state sovereignty 48, 91–2, 95, 121, 227, 230, 248, 278, 369, 398, 400, 410–12, 418, 498, 510, 556, 559 state-owned enterprises 271, 284 Steer, C. 537 Stegmann, O. 376 Stoics 23–5, 210 see also Aristotle; Plato strategic litigation 374–7, 385–6, 388–9 Stuart, H.V. 512 Student Climate Network 385 Suarez, F. 211 subsidiarity 96, 334, 339–40, 350, 369, 450–51, 453, 457, 494, 522, 526, 576–7 Suk, J. 189 Sullivan, K. 197–8 supranationality 460, 462–5, 467, 472–4 Svarez, C.G. 347 Sylvester, C. 400 Syrian civil war 83 systems theory 270–71 Taft, W.H. 17 Taliban 1 Tanaka, K. 213 taxation 42–3, 178, 425, 430, 455, 521 Taylor, T. 171 terrorism 103, 109–10, 167, 432, 440, 443, 473, 556 Teubner, G. 191, 321, 325 Third World Approaches to International Law 173, 176, 200, 276, 548 Thirty Years War 50, 556 Thomasius, C. 63 Thornhill, C. 325 Tierney, B. 8 Tomushat, C. 366 Tondriau, J. 35 Toope, S. 119–20 torture 187, 216, 220, 304, 440, 442 Trachtman, J.P. 131–2, 257, 259, 461, 521 trade liberalization 523 Transatlantic Trade and Investment Partnership 543, 549–52 transnational consensus 332, 340 transnational corporations 48, 54, 191, 306 transnational law 38, 168, 333, 375, 379, 382–3, 387–8 see also international law transnationality 332–40 Trans-Pacific Partnership 549 transparency 166, 241, 244, 250, 265, 267, 280, 286, 290, 313, 315, 350, 425, 440, 443, 445, 538, 550

Transparency International 286 treaty federalism 448, 456–7 Treaty of Amsterdam 495–6, 502 Treaty of Lisbon 82, 496–7, 502 Treaty of Maastricht 494–5, 499 Treaty of Nice 496, 499 Treaty of Rome 426, 492, 524 Treaty of Westphalia 78, 91, 95, 123, 154, 236, 277, 427–8, 556, 559–60, 564 Treaty on European Union 492, 496, 503, 519–20 Treaty on the Functioning of the European Union 495–6, 502 Treipel, H. 213 Truman, H.S. 254 Trump, D. 1, 272, 431, 444 Tully, J. 13–14, 47–9, 122–3, 135 unequal treaties 46, 55, 173 United Nations 4, 13, 16, 38, 46, 77, 96, 105, 159, 161, 167, 169, 172–4, 176, 179, 254–6, 283, 300, 302, 321, 323, 370, 398, 413, 415, 426, 440–41, 444, 477–87, 513, 561 United Nations Charter 13, 82–3, 96, 131, 133–4, 159, 171–2, 186, 222, 255, 259, 301–2, 346–7, 351, 364, 367–70, 395–6, 426, 428–31, 440, 443, 451, 460–74, 479, 481, 483, 486, 509, 530–32, 538, United Nations Charter United Nations Committee on the Peaceful Uses of Outer Space 530, 536, 538 United Nations Convention on the Law of the Sea 131, 326, 352, 429 United Nations Convention on the Rights of the Child 384 United Nations Covenant on Civil and Political Rights 82 United Nations Covenant on Social, Economic and Cultural Rights 82 United Nations Development Programme 290, 470–72 United Nations Framework Convention on Climate Change 159–60, 291, 382–3 United Nations General Assembly 4, 217, 222, 287, 400, 427–32, 462, 468, 470, 479, 485, 530, 532, 538 United Nations High Commissioner on Human Rights 380–81 United Nations Human Rights Council 509, 561 United Nations Implementation Force 466 United Nations Inter-Agency Meeting on Outer Space Activities 538 United Nations International Law Commission 214 United Nations Office of Outer Space Affairs 538 United Nations Protection Force 466

590  Handbook on global constitutionalism United Nations Security Council 96, 222, 288, 300, 303–5, 322–3, 395–7, 400, 412, 415, 419, 429, 440, 443, 454, 462–6, 473–4, 479, 486, 502, 514, 517, 519, 539 United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium 466 United Nations Transitional Authority in Cambodia 467 Universal Declaration of Human Rights 59, 77, 430 universalism 2–3, 78, 90, 97, 135, 169, 171, 173, 178–9, 185, 187, 191–2, 210, 260, 298, 304, 573, 577 universality 173–5 Urgenda Case 373–4, 377, 379–86, 388–9 Urquhart, Brian 465 US Congress 18, 426, 520, 560 US Constitution 68, 79, 81, 103, 198, 218–20, 254, 461–2, 519–20, 564 US invasion of Afghanistan 1–2 US Supreme Court 66, 68, 78, 221, 322, 347, 377, 473, 558 use of force 4, 32, 105, 109, 208, 213, 220, 223, 301, 352, 368, 395–403, 418, 424, 466, 483, 534, 538 utopianism 90, 122, 129, 136, 172, 196–8, 549, 553 value pluralism 559–60 van Eijk, C. 533 Vanhala, L.C. 378 Vattel, E. de 9, 14, 94, 212 Venezuela 60 Verdross, A. 214–15, 226, 483 Verenigde Oostindische Compagnie see Dutch East India Company Verhoef, P.W. 52–3 Vico, G. 246 Vienna Convention on the Law of Treaties 59, 249, 357, 367, 415

Vliegenthart, R. 381 voluntarism 63–4, 66, 69–70, 234, 236, 296–7, 320 Waldron, J. 97, 245, 286, 418 Walker, N. 95, 135, 324, 369 Walter, M. 245 war crimes 216, 241, 398, 511–12, 514 War on Terror 103, 109–10, 167 Wassenaar Agreement 479 Watson, A. 155 Weber, M. 433, 466 Weeramantry, C. 215 Welsh, J. 399, 401 Wenger, E. 242 Westerman, P.C. 375 Wheare, K.C. 449 Wiener, A. 135, 240, 373, 377, 385, 399, 457, 460 Wight, M. 155 Williams, A. 468 Williams, S. 188 Wilson, W. 18, 110 Wittke, C. 189 Wolff, C. 64 Wonneberger, A. 381 World Bank 283–4, 444, 470, 472, 478, 551 World Congress of Families 562 World Health Organization 272, 444–5, 472, 479–81 world public opinion 266, 271, 278, 284–7, 291–2 World Social Forum 327 World Trade Organization 13, 16, 60, 85, 134, 166, 173–4, 177–8, 244, 246, 257, 259, 322–3, 348, 351, 353–4, 356, 359, 411–13, 415, 419, 444, 468, 473, 478, 509, 519–26, 542, 544–5, 547, 575 Xerxes 30 Zemanek, K. 258–9, 369