The chapter deals with a question so far addressed only cursorily in the literature about concepts of international constitutionalism – the ‘writtenness’ of an international constitutional law. Can we assume the existence of an ‘unwritten’ international constitution, or does the very concept of a constitution in the modern sense require that a constitution is laid down in written form? The chapter discusses the importance of ‘writtenness’ in modern constitutionalism and addresses the ‘English exception’, that is, the absence, in the United Kingdom, of a document called ‘the constitution’. It concludes with a plea for taking the constitutional character of the UN Charter more seriously, arguing that the idea of an unwritten constitution of the international community does not provide a viable alternative.
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Michael W. Doyle
The chapter explores the degree to which the United Nations (UN) Charter serves as a constitution for the international order. It finds that the Charter is neither like a national federal constitution (for example, the US Constitution) nor an ordinary contract-like treaty. Its key constitutional features are three: first, limited supranationality; second, political inequality and, third, like all constitutions, an ‘invitation to struggle’ that leads to inevitable pushback from states when UN authority expands. The chapter explains both the planned and inadvertent transfers of authority embodied in modern peacekeeping mandates and the Millennium Development Goals. It concludes 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.
This chapter offers a series of thought experiments about what it might mean to adopt a realist perspective on global constitutionalism. On the one hand, it is through an approach that seeks to relate the law to concrete social processes, as originally advocated by the legal realists, that one can begin to make a case for an observed constitutionalization on the supranational level. On the other, however, political realists will point to the ‘ism’ in global constitutionalism that ultimately entails an apology for state interests, systemic inequalities, ‘untamed’ sovereignty, and the occlusion of particularist ideologies behind highly instrumentalized appeals to a universally accepted normative order.
Three versions of the principle of proportionality exist in international law, with different constitutional functions. The horizontal version 1 applies, inter alia, in the field of countermeasures. The principle here refers to the relation between action (breach of international law) of the state and the admissible reaction of another state. The diagonal version 2 concerns the relation between and national public interest and particular interests, of individuals (for example, in international humanitarian law), or of investors. The vertical version 3 refers to the relation between a global public interest, for example, in free trade, and particular interests of states.
This chapter draws attention to the political economy of global constitutionalism. The relationship between the market and the state, the global distribution of wealth, and the institutionalised prioritisation of market-related interests are raised as issues which concern global constitutionalism. The assumed division between the public and the private in constitutionalism is discussed as a means to silence important questions of political economy, particularly regarding its neoliberal and neocolonial features. To test this thesis, it is considered whether trade deals such as the Transatlantic Trade and Investment Partnership (TTIP) are symptomatic of a neoliberal and neocolonial global constitution.
Jeffrey L. Dunoff
This chapter details the shifting terms of encounter between functionalism and global constitutionalism. During the inter-war years, functionalism denoted a strategy of international organization that stood in opposition to constitutionalist approaches. Over time, functionalism came to be understood as a methodology that could be used to illuminate or critique constitutional structures. More recently, functionalism has been conceptualized as a distinctive feature or style of post-national constitutional orders. Disentangling the various strands of the relationship between functionalism and global constitutionalism provides a trajectory over time of the shifting preoccupations of those addressing questions of international organization, as well as a series of distinguishable but mutually reinforcing frames through which to understand debates over the possibility, significance and normative desirability of constitutionalism beyond the state.
Modern constitutionalism is grounded in the ideal of the Enlightenment combining the rule of reason with equal liberty for all. From a theoretical standpoint, constitutionalism revolves around three major strands that have not been easy to reconcile: a positivist strand; a contractarian strand; and an identitarian strand. At the national level, a sufficient confluence between these three strands is achievable and the hierarchy and unity of the constitutional order guaranteed. At the global and transnational level, however, several challenges arise, as the positivist and identitarian dimensions become much more problematic. Nevertheless, with appropriate adjustments, global constitutionalism looms as entirely plausible.
Only after the age-old pattern of sacral kingship had been frontally challenged by church reformers in the eleventh century was it possible for the lineaments of constitutionalist forms to emerge in Western Europe during the Middle Ages. After that, it was to be between the anvil of competing governmental structures, temporal and spiritual, that Western political freedoms were to be formed. Central to that process were the subjection of kings to the rule of law, both civil and natural, the contractual nature of the feudal relationship between lord and vassal which helped promote that subjection, and the subsequent development of representative assemblies which introduced the further possibility of eliciting and requiring a broader measure of quasi-popular consent to governmental policies even in large territorial states and in the transnational Church itself.
Liberal political and legal theory has enjoyed a remarkable resurgence since the mid-twentieth century. The emergence of global constitutional thought is closely coupled with its rise to prominence. Yet many theorists of global constitutionalism are wary of acknowledging their ‘liberal’ commitments. This chapter makes the case that at the deepest level of interpretation, prominent theorists of global constitutionalism are ‘liberals’ in all but name. Through a double critique of the liberal foundations of their thought, an argument is advanced that there are unanswered questions about the best way of understanding and grounding a global constitutional order beyond liberal theory.
The UN General Assembly is the closest contemporary semblance to the global-level body wielding real legislative power composed of members connected with, accountable to, and replaceable by the people (citizenry) through periodic competitive elections desired by advocates of world government. Yet as a product of the twentieth-century multilateralized Westphalian states system, it lacks both features, and efforts to change that situation appear unlikely to succeed any time soon. This means that for the foreseeable future global constitutionalism will be advanced more by fostering constitutionalist norms regarding rule-making and policy implementation than by pursuing constitutionalist institutional designs.