Author Archives: oneditor

The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part I, I argue that most accepted understandings of “constitution” would readily apply to at least some international regimes. In Part II, I discuss different notions of “constitutional pluralism,” and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward an argument that the European Court of Justice, the European Court of Human Rights, and the Appellate Body of the World Trade Organization are constitutional jurisdictions. In the Conclusion, I respond what I take to be the most important objections to these claims. Continue reading →

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-à-vis their own governments. This article discusses the development of aspects of international law relating to civil rights and argues that if this body of law is meaningful, we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because doing so is not generally in the interest of potential “enforcers”), I argue that international civil rights treaties will have their greatest effect where stakeholders—local citizens—have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized. Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries—those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice and fair trials. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country- and year-fixed effects, and other obvious influences on civil rights practices. I conclude that the “International Bill of Rights” has the power to influence the direction of rights practices in fluid political situations, but it cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important and are the most we can expect from scraps of paper that the international community has been reluctant to enforce. Continue reading →

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and other principles of justice calling for judicial balancing of all private and public interests affected by the dispute. The constitutional task of judges to apply the law and settle disputes in conformity with principles of justice may require reviewing whether judicial reasoning remains compatible with redistributive principles of case-specific equity, social justice and corrective justice. Continue reading →

The law of international responsibility fulfills essentially two functions: reparation for injury and protection of the rule of law and global order. Notwithstanding the fundamental difference between these objectives, the law of international responsibility traditionally has been conceived in unitary norms consisting of a single set of principles that applies to all breaches of rules of international law. With the further development of international law that unity becomes difficult to maintain. On the one hand, there is an increasing need for a further refinement of liability principles for the determination of compensation for injury. On the other hand, the process of constitutionalization of international law poses entirely different accountability requirements to which the law of international responsibility should contribute. Maintaining unity may lead to inconsistencies and hinder the refinement of the law of international responsibility that is necessary to deal with the various types of responsibility and accountability issues of modern international law, thereby marginalizing the law of responsibility. Continue reading →

Global constitutionalization is a recent phenomenon that is decisively changing the character of the international order. This argument was put forward recently by scholars of international law and has gained significance in the institutional school of thought. However, the notion of “global constitutionalization” is often used imprecisely and has so far been largely neglected in the field of international relations. It still lacks a consistent and operational definition, which would enable political scientists and international relations scholars to conduct empirical research. This article explores a preliminary framework for the concept of global constitutionalization. Continue reading →

As powerful actors in the transnational sphere, GPPNs must address three challenges relating to the future of constitutionalism. First, is it possible to put non-state political actors under a constitutional regime? Second, if it is possible, how does one do so? Third, in what ways can the project of constitutionalism be expanded beyond the frame of the nation-state, if at all? The answers to these questions must address the central problem of global constitutionalism: how the traditional bond between the nation-state and its constitution can be dissolved without abandoning the accomplishments that the project of the modern state constitution stands for—founding, legitimizing, and confining democratic governance. Continue reading →

The quest for multilayered governance faces the problem of endemic tensions and disagreements in international relations and doubts as to whether nations truly share common values upon which an international society can be solidly built. Values, however, are equally controversial within the nation-state. We find similar tensions within domestic and regional layers of governance. In any system of governance, diverging and competing values are inevitable. There are differences in degree, but not in principle, when comparing traits of domestic and international governance. Legal experience in the fields of human rights and international trade regulation indicates that under such conditions, procedures are of prime importance. On all levels alike, procedural instruments and guarantees play a key role in arbitrating between competing values, interests, and rights. These guarantees today are unevenly developed, not only in comparing different layers of government, but also foremost in comparing different countries forming part of the international system. They are far from perfect, but offer the way forward for further work toward a coherent legal theory of multilayered governance. Continue reading →

The surge of interest among international lawyers in “constitutionalism” represents one of several efforts to reconceptualize international governance; others include the research projects on global administrative law and legalization. The article applies the constitutionalist lens to international environmental law—one of the few fields of international law to which constitutionalist modes of analysis have not yet been applied. Given the protean quality of the terms “constitution” and “constitutionalism,” the article begins by unpacking these concepts. By disaggregating these concepts into a number of separate variables, which have more determinate, unambiguous meanings, we can answer the question, “Is there an international environmental constitution?”, in a more nuanced way—not in an all or nothing fashion, but by considering the extent to which international environmental law has constitutional dimensions. The article concludes that, although individual treaty regimes have constitutional features, international environmental law as a whole lacks the hallmarks of a constitutional order. Continue reading →

The United States Treasury conservatively estimates that tax havens cost the United States over $100 billion annually in lost tax revenue. In response to this epidemic, the United States and the Organization for Economic Cooperation and Development entered into Tax Information Exchange Agreements with states considered to be tax havens. These agreements received widespread recognition as a means of remedying this growing problem. These agreements, however, are largely symbolic and provide very few additional weapons to combat tax evasion enabled by tax havens. As evidence of this, the estimated annual loss of tax revenue due to tax havens has increased since the enactment of these agreements.

This Note argues that information exchange agreements are a reactionary policy and will neither truly eliminate nor curb tax evasion through tax haven states. To effectively combat the tax haven problem, policies must be adopted that should focus on domestic solutions and should strengthen existing laws that are far too weak and underutilized. Continue reading →

This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective. The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a constitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise. It is a legitimate form of interpretation, not a distortion of norms that are “objectively” something else. Continue reading →

This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective. The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a constitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise. It is a legitimate form of interpretation, not a distortion of norms that are “objectively” something else. Continue reading →

Global constitutionalism is an agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere. Global constitutionalization is the gradual emergence of constitutionalist features in international law. Critics of global constitutionalism doubt the empirical reality of constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is normatively dangerous because it is anti-pluralist, artificially creates a false legitimacy, and promises an unrealistic end of politics. This article addresses these objections. I argue that global constitutionalization is likely to compensate for globalization-induced constitutionalist deficits on the national level, that a constitutionalist reading of international law can serve as a hermeneutic device, and that the constitutionalist vocabulary uncovers legitimacy deficits of international law and suggests remedies. Global constitutionalism, therefore, has a responsibilizing and much-needed critical potential. Continue reading →

Environmental thinking and activism are steadily gaining widespread, even global acceptance, but are often in conflict with economic interests and international politics. Environmental priorities are further challenged by scientific uncertainty involving effects that in some cases will only become manifest far into the future. Nonetheless, accompanying this global environmental awakening has been an extraordinary number of international agreements on a wide range of critical environmental issues. While many of these environmental regimes lack adequate financial support and sanctions for non-compliance, they involve a variety of non-state actors, suggesting meaningful movement towards an evolving, complex form of global environmental governance. Indeed, there are already examples of shared global governance where states have ceded some power to intergovernmental organizations to govern specific environmental issues, and this is almost certain to expand in the future. Continue reading →

Are there situations in which otherwise attractively complex, sub- and cross-national networks are unlikely to replace the hoary old Westphalian state? Perhaps, but whatever the answer, global governance as a discipline seems to have a hard time fully considering the question. One of the problems with operationalizing global governance may be the simultaneous profligacy and poverty of the idea itself: its definitional overemphasis on change and consequent inattention to the state’s capacity to reconstitute its core functions and thus to achieve a predictable continuity. As a result, for all the excellent work done under its name, global governance as a unifying concept may actually contribute very little, and be less than the sum of its parts. Thinking about limits is not necessarily skepticism about the processes that collectively constitute global governance, but a way to give more meaningful shape to ideas which, as yet, are as problematically defined as they are fashionable. Continue reading →

International non-governmental organizations (INGOs) promote good governance through global advocacy and through relief and development work. This article focuses on the latter role. While there are legitimate criticisms of INGOs’ lack of accountability, this article argues that a review of the different stakeholders in the relief and development sector and their relationships with one another reveals valuable information about what accountability means and to whom stakeholders should be accountable. The article posits that INGOs should be accountable, above all, to the communities where they are implementing projects. Finally, the article points to many efforts being undertaken by INGOs to improve their accountability to communities but asserts that INGOs’ efforts would be significantly enhanced if other stakeholders, including donor governments and intergovernmental, organizations addressed their own accountability to communities as well. Continue reading →

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the social bases of democracy by constructing rights. This essay argues that the constitutional changes that occurred are a necessary but not sufficient explanation for the role these two courts play. The agenda courts undertake is shaped both by short-term political bargains and by long-term societal transformations. As a result of both the bargains that led to the adoption of a new constitution and broader intellectual transformations regarding the role of courts in effectuating constitutional guarantees, the Colombian Constitutional Court has pursued a more ambitious agenda than the Mexican Supreme Court. Continue reading →