16 Theory Constitutionalisation & Fragmentation PDF

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Summary

Global Constitutionalism ● Kant ○ ‘Perpetual peace’ → unified peaceful international society ● Lauterpacht ○ Covenant of the League → “more” than just the average treaty ■ Differs so radically in scope and significance as a purposeful instrument in the process of political integration ● Fassbender ○...

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Global Constitutionalism ● Kant ○ ‘Perpetual peace’ → unified peaceful international society ● Lauterpacht ○ Covenant of the League → “more” than just the average treaty ■ Differs so radically in scope and significance as a purposeful instrument in the process of political integration ● Fassbender ○ ‘constitutional law of the international community which may be influenced by constitutional ideas and practices developed in a national context but stands on its own feet’ (in reference to the UN charter) ● Application of constitutional procedures of resolving conflicts, balancing as a constitutional technique, the functions of the law, and how specialized regimes interact with general international law ● UN Charter as the constitutional moment in international law → however, institutional law is always reactionary and older laws will no longer suffice ● Key question: Whose benefit is this system constitutionalizing? Varieties of Constitutional Theories ● Verdross ○ International constitution based on core principles of international law → sources, subjects, jurisdiction, and execution of international law ○ Customary international law and the development of treaties ● De Wet ○ Hierarchy of international law including erga omnes obligations (obligations towards all), human rights system of rules, and the UN as an enforcement body → network of regimes operating as the international constitutional order ○ Acknowledges that there are difficulties → ex. War in Iraq and the ICC’s difficulty in getting the US to cooperate ● Cass ○ Importance of institutions to international economic law ○ Debate on constitutionalization in economic law takes place in 6 areas: ■ Institutions and constitutions and a conflation of the concept of an institution with a constitution ■ An interdependence with wider scholarship about globalization ■ General consensus about the benefits of liberalization and the international economic law framework with supports it (with occasional critique) ■ Concentration on regulation rather than ‘law’ in the traditional sense ■ Fixation with the problem of defining the field ■ Belief in the transformative nature of international economic law ● WTO Director General Lamy ○ “Cosmopolitics” → in support of a liberal trading system (global public goods) ● Much critique for constitutionalization of international trade law → “right to property”, EU’s own constitutionalist project, etc. Merits of Constitutionalism ● Sovereignty is losing its normative basis in States in favour of individual human rights and interests ● State consent being replaced by majority decision making → contributes to legitimacy and effectiveness ● Certain basic values (mostly ratified through treaties) have acquired universal acceptance → form the framework of the constitution of international law

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Settlement of international disputes is legalized, proceduralized, and ‘juridified’ through international courts and tribunals with compulsory jurisdiction Demerits of Constitutionalism ● International society lacks a common identity ● International law lacks the unity of interests in domestic law ○ Danger of seeking a “one size fits all” legal system, eradicating the possibility of legal differences ● Constituent power → concern for concentrations of power? ○ Who are the constituents within this system? States? IO’s? Individuals? ○ Consideration: International law projects western identity and thoughts → democratic deficit ○ Relationship between politics and law… ● International law constitutionalizing → largely European as opposed to global legal order ● Constitutionalist vocabulary is too vague and insufficient to be adapted to today’s reality ● Consideration: what will happen to government within a State? Effects within a State... Phenomenon of Fragmentation ● Sectors of international law becoming increasingly independent and ultimately stand alone ● Simma ○ self-contained regimes within international law that will become more and more apparent ● Exacerbated by the fact that there are so many different constitutive instruments that uphold different functions and purposes ● Phenomenon is substantive → concerning the collapse of a unified system due to different regimes operating and information relationships between differing units and actors ● Concern for diminishing role of states → so many specialized regimes to accommodate a wider role for non-State actors ● Koskenniemi ○ Looked at specialized regimes and attempted to assess whether international law is ‘losing control’ → conclusion = if anything, there is great effort in trying to preserve the system Specialized Regimes ● Normative conflicts → two separate valid norms conflicting with one another ● All specialized regimes can be juxtaposed against one another and possible conflicts can occur → examples: ○ Reconciling environmental protection with the needs of economic development and free trade ideals ○ Conflict between international armed forces and the right of a State to quell civil disturbances and preserve peace ○ Reconciling human rights with State sovereignty and the right to non-interference ○ Addressing major international crimes without the consent of national States Resolving Norm Conflicts ● ILC Report ○ Some rules of international law are more important than others → enjoy a superior position/special status in the international legal system ○ Designation of some norms as “fundamental” or as expressive of “elementary considerations of humanity” or “intransgressible principles of international law” ○ Effects → determined by the relevant context or instrument in which that designation appears ● Relative normativity ○ Jus cogens rules and erga omnes obligations → ‘constitutional’ norms of international law ● Charter Art 103

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In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail ● Lex specialis law (more specialized law) → supersedes vague, general rules of international law Proliferation of International Courts and Tribunals ● Expansive international institutions → interpret norms differently and contribute to fragmentation ● International human rights courts → challenged the treaty law on reservations to human rights treaties...