The Constitutionalization of International Law

by Klabbers, Jan; Peters, Anne; Ulfstein, Geir

• ISBN13: 9780199543427
• ISBN10: 0199543429
• Format: Hardcover
• Copyright: 2009-11-30
• Publisher: Oxford University Press

Summary

The book examines one of the most debated issues in current international law: to what extent the international legal system has constitutional features comparable to what we find in national law. This question has become increasingly relevant in a time of globalization, where new international institutions and courts are established to address international issues. Constitutionalization beyond the nation state has for many years been discussed in relation to the European Union. This book asks whether we now see constitutionalization taking place also at the global level. The book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level and what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book is a critical appraisal of constitutionalist ideas and of their critique. It argues that the reconstruction of the current evolution of international law as a process of constitutionalization -against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law- has some explanatory power, permits new insights and allows for new arguments. The book thus identifies constitutional trends and challenges in establishing international organizational structures, and designs procedures for standard-setting, implementation and judicial functions.

Author Biography

Jan Klabbers is professor of international organizations law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. Prior to moving to Helsinki in 1996, he taught international law and EU law at the University of Amsterdam, where he also defended his doctoral thesis (with distinction). An award-winning teacher, he has held visiting professorships at the Graduate Institute of International Studies and Development (Geneva, 2008) and Hofstra Law School (New York, 2007).
Anne Peters is Professor of Public International Law and Constitutional Law at the University of Basel, a position she has held since 2001. She is visiting professor at Sciences Po, Paris in 2008/09. Prior to taking up the tenured post she was Assistant Professor at the Walther-Schucking-Institute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her Habilitation-Thesis "Elemente einer Theorie der Verfassung Europas" (Elements of a Theory of the Constitution of Europe). Her research activities cover the field of general public international law, especially its constitutionalization, European constitutional law, constitutional theory and constitutional comparison and national and international human rights. She has published extensively on questions of supranational global governance and global constitutionalism. Geir Ulfstein is professor of international law at the Department of Public and International Law, University of Oslo. He is dr. juris (Oslo 1995) and has acted as a judge in Norway. He has been Vice-Dean for Research and leader of the Committee to prepare Master of Law studies at the Law Faculty of the University of Oslo. He is deputy director of the Norwegian Branch of the International Law Association. He was director of the Norwegian Centre for Human Rights, University of Oslo, 2004-08. His research is on the law of the sea, international environmental law, human rights and the law of international institutions.

Table of Contents

Preface	p. v
Table of Cases	p. xiii
List of Abbreviations	p. xvii
Setting the Scene	p. 1
Introduction	p. 1
The Plan of this Book	p. 3
Fragmentation, Pluralization, Verticalization (and Privatization)	p. 11
On Constitutionalization	p. 19
A Pluralist Constitutionalism	p. 25
Forms and Techniques	p. 31
On Legitimacy	p. 37
Conclusions: Towards a Legitimate Constitutional Order?	p. 43
Institutions and Competences	p. 45
Introduction	p. 45
Organizational Framework	p. 46
Formal international organizations	p. 46
Treaty bodies	p. 48
Soft law organizations	p. 51
Constitutional Guarantees	p. 55
Political accountability	p. 55
Rule of law	p. 59
The Relationship between International Institutions	p. 67
The need for consistency	p. 67
Principles for organizing the relationship	p. 68
The competence to act at the external level	p. 71
The Relationship to Member States	p. 74
Protection of Human Rights	p. 77
Conclusions	p. 80
Law-making and Constitutionalism	p. 81
Introduction	p. 81
An Infinite Variety	p. 85
Recent Theorizing	p. 93
A Functionalist Turn?	p. 99
Law versus Non-law	p. 106
Towards Presumptive Law	p. 111
Some Outstanding Issues	p. 122
Conclusions	p. 124
The International Judiciary	p. 126
Introduction	p. 126
Due Process	p. 127
Expertise	p. 128
Independence	p. 130
Equal access	p. 132
Fair hearing	p. 133
The Need for Consistency	p. 135
International tribunals	p. 135
National courts	p. 142
Democratic Control	p. 147
National legislator	p. 147
International legislator	p. 149
Conclusions	p. 150
Membership in the Global Constitutional Community	p. 153
The Constitutional Community	p. 153
Individuals	p. 157
Primary international legal persons	p. 157
The individual's right to have international rights	p. 158
Individual rights to participation: towards individuals' law-making power	p. 159
Towards individualized law-enforcement	p. 161
The expansion of international human rights	p. 167
Beyond human rights	p. 168
Individuals as creditors of international responsibility	p. 171
Individual agency in the law of diplomatic protection	p. 172
International individual obligations	p. 174
By way of conclusion: from bourgeois to citoyens	p. 177
States	p. 179
States as pouvoirs constitués, not pouvoirs constituants	p. 179
The effectiveness and legitimacy of states	p. 180
Sovereignty	p. 182
Equality	p. 190
The constitutional functions of states in a constitutionalized world order	p. 196
By way of conclusion: the domestic analogy reversed	p. 200
International Organizations	p. 201
Sectoral constitutionalization	p. 201
Hybridity: treaty-constitutions	p. 203
Constitutional principles containing member states	p. 205
Autonomy as a proxy for sovereignty and as trigger for constitutionalist demands	p. 208
Accountability of international organizations towards citizens	p. 210
Rule of law and human rights responsibilities of international organizations	p. 212
(Judicial) constitutionalization of and through adjudication	p. 215
The constitutionalization of organizations as judicial self-empowerment	p. 217
Non-governmental Organizations	p. 219
Towards a principle of openness	p. 220
A constitutionally appropriate accreditation of NGOs	p. 222
NGO participation in international law-making: 'voice', not 'vote'	p. 225
NGO participation in law-enforcement	p. 227
The legitimacy and accountability of NGOs	p. 235
By way of conclusion: NGO voice as a constitutional condition of global governance	p. 239
Business Actors	p. 240
The international economic constitution as a framework for business actors	p. 240
Rendering business actors responsible	p. 243
International partnerships, outsourcing public functions, and constitutional limits	p. 246
International law-making with business actors	p. 248
The enforcement of international hard and soft law by business actors	p. 251
The legitimacy of business actors	p. 255
The accountability of business actors	p. 256
By way of conclusion: towards trilateral partnerships with governmental residual responsibility	p. 258
Dual Democracy	p. 263
Democracy as a Principle of the Global Constitutional Order	p. 263
The duality of global democracy	p. 264
The meanings and merits of democracy	p. 265
The democratic deficits of global governance	p. 267
New types of democracy for the global level?	p. 268
First Track: The Democratization of International Governance via Democratic Nation States	p. 271
States as democratic mediators	p. 271
Towards a global constitutional principle of domestic democracy	p. 273
Persisting problems of the statist track of democratization	p. 286
Second Track: Citizenship as the Basis of a Non-state Democratization of International Governance	p. 296
Transnational citizenship	p. 297
'Who speaks of humankind cheats'?	p. 302
Looking forward: the globalization of citizenship	p. 307
Second Track: The Role of Civil Society Actors in Global Democracy	p. 313
Global civil society	p. 313
Democratic benefits of NGO involvement	p. 315
Second Track: Institutional Design for a Non-state Democratization of Global Governance	p. 318
Transnational referendums and consultations	p. 318
Modes of citizens'representation	p. 319
Parliamentary assemblies	p. 322
More transparency	p. 326
Impracticalities of non-state democratization	p. 330
Practical benefits of non-state democratization	p. 332
Tensions between the Two Tracks	p. 333
Complementary Mechanisms of Legitimacy and Accountability	p. 338
Conclusions	p. 342
A Paper Tiger?	p. 342
Sneaking into Legitimacy?	p. 344
Unpacking Global Constitutionalism?	p. 345
Constitutional Pluralism	p. 346
Compensatory Constitutionalism	p. 347
Global Constitutionalism as a Hermeneutic Device	p. 347
The Problem and Promise of Politics	p. 348
Global Constitutionalism's Critical Potential	p. 351
Bibliography	p. 353
Index	p. 385
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