Fragmentation vs the Constitutionalisation of International Law

A Practical Inquiry

Andrzej Jakubowski, Karolina Wierczyńska, Andrzej Jakubowski, Karolina Wierczyńska

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138119727
• eBook ISBN: 9781317312277
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The current system of international law is experiencing profound transformations. Indeed, the simultaneous processes of globalization combined with the disintegration of international systems of governance and law-making pose complex challenges for legal scholarship. The doctrinal response to these challenges has been theorized within two seemingly contradictory discourses in international law: fragmentation and constitutionalisation.

This book takes an innovative approach to international law, viewing the processes of the fragmentation and constitutionalisation as being profoundly interconnected and reflective of each other. It brings together a select group of contributors, including both established and emerging scholars and practitioners, in order to explore the ways in which the problems of fragmentation and constitutionalisation are viscerally linked one to the other and thus mutually conditioning and stimulating. The book considers the theory and practice of international law looking at the two phenomena in relation to the various fields of international law such as international criminal law, cultural heritage law and international environmental law.

Part I

International constitutionalisation as a claim

1Constitutionalisation

A new philosophy of international law?

Jerzy Zajadło and Tomasz Widłak

1Introduction: is constitutionalisation in need of revision?

At the beginning of our analysis of the problem of the constitutionalisation of international law, we would like to make three reservations. The first two of these to the original title for the research project proposed to us by the editors of this volume (‘Constitutionalisation and Fragmentation of International Law Revisited’), which preceded its publication. This formulation raised substantial doubts, but at the same time it has given us food for thought as the starting point for this reflection.

First of all, a hidden normative claim had been included that the right time had come to revisit, or consider afresh, the notions of both the constitutionalisation and the fragmentation of international law. While distancing ourselves from the part of this thesis pertaining to fragmentation, which may indeed have recently undergone a revision, or at least a transformation, we wish to direct our attention to the somewhat more perplexing concept of the constitutionalisation of international law. We simply believe that there is as yet nothing to be ‘revisited’ as far as global constitutionalism is concerned. This contribution will sustain the view that the discussion on the constitutionalisation of international law has not yet matured to a point that allows definite conclusions amounting to any sort of possible revision of its central theses.¹ Instead, the debate on constitutionalisation may just have placed itself in the very starting blocks before taking a definite leap towards a more robust development as a meaningful doctrinal tool or perhaps even a new philosophy of international law. It is indeed an intellectual movement driven by academics rather than lawmakers, and it has both interpretative (descriptive) as well as constitutive (creational) potential. Let us quote the following opinion of Anne Peters: ‘The constitutionalisation process of international law is mainly driven by academics and to some extent by international courts, not by governments and treaty-makers’.² Also, she points out:

Global constitutionalism is an intellectual movement which both reads (or reconstructs) some features of the status quo of international relations as ‘constitutional’ and ‘constitutionalist’ (positive analysis), and also seeks to provide arguments for their further development in a specific direction (normative analysis).³

Secondly, we interpret the conjunction ‘and’ in the above-mentioned formulation as pointing towards certain normative theses that we support: namely that the two processes of constitutionalisation and fragmentation are parallel and to a substantial degree autonomous in relation to each other.⁴ These are not necessarily two opposite ends of the same process (if they were, the formulation would read, for example, ‘from fragmentation to constitutionalisation’⁵). Likewise, international law itself is not and does not have to be torn between the two; the question is not about ‘international law between constitutionalisation and fragmentation’. Therefore, we interpret the use of the word ‘versus’ in the title of this volume (‘Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry’) not as suggesting any antagonism between the two but rather as a reference to them being dynamically interconnected with a substantial degree of autonomy towards each other. This allows us to focus our inquiry on constitutionalisation but without denying in any way the link between the two notions.

The last reservation (by no means the least, however) is that our comments are not made from the point of view of scholars of international law, or to put it differently, from the inside of the discipline, but rather from the perspective of legal philosophers, or from the outside of the doctrine of international law. Our methodological point of departure can be described as that of the philosophy of international law, which we believe is at present one of the most dynamic and transformative areas of law and philosophy. For that reason, it is not only international lawyers who are interested in the robust processes represented by the constitutionalisation of international law; as will become evident in this chapter, legal, social and political philosophers are also interested. To mention just one example at this point (but a very significant example) that demonstrates the centrality of the problems of international law in the modern philosophy of law: one of the most influential contemporary American legal philosophers, the late Professor Ronald Dworkin, recently devoted his last paper (published post mortem) entirely to the key problem of the grounds of international law.⁶ Clearly, one prima facie observation is undeniable: something is happening with and within international law, and moreover that something should be written with a capital ‘S’. The statement seems to be widely accepted in the doctrine of public international law, since the dramatic changes of the last two or three decades in the functioning and merits of international law are quite evident. However, we believe that this may not be just a substantial change in the content of international law but rather a qualitative shift in paradigms. In that regard, constitutionalisation can serve not only as an exemplification or expression of this change, but also as a point of departure in constructing an entirely new philosophy of international law.

2Constitutionalisation, constitution and sovereignty in international law

For a long time philosophy has been committed to a certain provocative question – do the language and concepts we use only reflect a state of affairs, or can they also construct reality?⁷ Notwithstanding the answer given, there is no doubt that the question has a particular significance in relation to the language used in the public sphere, which also includes the study of law. In reference to the topic of this paper, one may of course ask about the possibilities, meanings and effects of the application of the term ‘constitutionalisation’ in the area of international law. Nagging doubts about the use of language, which keep tormenting philosophers, appear to be particularly relevant at this point – the phenomenon of ‘global’ and ‘postnational’ constitutionalism lies exactly at the intersection of ‘the law and the language’,⁸ and is connected with the ‘problem of translation’.⁹ Moreover, the historical development of international law and its scholarly study shows some specific features. For example, Stephen Beaulac draws attention to this process by referring to the immense transformative power that the word ‘sovereignty’ has had over the centuries. In his opinion, it is the concept of centralised power first created by Jean Bodin (in the sixteenth century) and then extrapolated by Emerich de Vattel (in the eighteenth century) to the external ground of international relations that has shaped the paradigm of ius inter gentes. ¹⁰ Of course, this is not to say that the historical role of this specific kind of linguistic determinism should be exaggerated, but it is difficult not to agree – at least to some extent – with the opinion that it was a revolution in ideas that led to a revolution in terms of sovereignty, which in turn shaped the state system that defines the world politics of the present day.¹¹ Contrary to appearances, this has a very close connection with the problem of the modern constitutionalisation of international law, because in philosophy, politics and international relations theory so far it has been precisely the principle of sovereignty that has been recognised as the constitutional foundation of the international community.

From this point of view, the contemporary doctrinal phenomenon under discussion here is actually an attempt to shift this paradigm. The main objective of contemporary proponents of the constitutionalisation of international law is a broad acknowledgment of the statement that it is not sovereignty, or, being more precise, not primarily sovereignty, that should form the basis of the ‘constitution of the international community’.¹² Paraphrasing a famous saying by Cicero, ‘where there is a society, there is the state, and there is the law’ (ubi societas, ibi civitas, ibi ius); one may say that if the international community is no longer merely a mechanical collection of sovereign entities, but has evolved into a structurally complex community based on generally accepted axiology, then sooner or later a constitutional basis for its existence and functioning must be built (ubi societas, ibi communitas, ibi constitutio).¹³

If we recall the controversy associated with the process of the constitutionalisation of European Union law,¹⁴ then it is easy to imagine the difficulties piling up before lawyers who are trying to convey this concept in relation to the even broader and far more precarious area of international law. Some lawyers may even have the impression that it is, prima facie, oxymoronic to think about a combination of the instruments of constitutional law on the one hand and international law on the other. This is even more likely to be true because the word ‘constitutionalisation’ has a relatively well defined and commonly accepted meaning in the field of municipal law, where it is connected with an idea of the transmission of the constitution (as the supreme legal act) and its values onto the entire system and legal order. However, in the context of international law a completely different sense of this word is relevant – the development of international law towards a constitutional system.¹⁵ On the other hand, in recent years one can witness the gradual expansion of the relationships between constitutional law and international law; Brun-Otto Bryde very aptly referred to this process as ‘the internationalisation of constitutional law’ and the ‘constitutionalisation of international law’.¹⁶ Anne Peters points to a slightly different aspect of this relationship. According to her, the processes of globalisation have caused the de-constitutionalisation of national legal systems, and, therefore, a reverse process at the international level can act to compensate for this loophole.¹⁷

3Connotations of constitutionalisation in international law

When the word ‘constitution’ appeared from time to time in international law, especially in the titles of treaties setting up and defining the structure and functioning of international organisations, no attention was paid to it.¹⁸ In particular, there were no attempts to construct a philosophy of an international legal constitutionalism sui generis on this basis. However, as far a...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Notes on contributors
• Foreword
• Acknowledgments
• Select abbreviations
• Table of legislation
• Introduction
• Part I International constitutionalisation as a claim
• Part II Fragmentation of international law as a challenge to its constitutionalisation
• Part III Constitutionalisation through fragmentation
• Index