On the Constitutionalization of General International Law

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The Jean Monnet Program

Professor J.H.H. Weiler

European Union Jean Monnet Chair

Jean Monnet Working Paper 06/05

Theodor Schilling
On the Constitutionalization of General International Law

NYU School of Law New York, NY 10012

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No part of this paper may be reproduced in any form

without permission of the author.

ISSN 1087-2221

© Theodore Schilling 2005

New York University School of Law

New York, NY 10012


On the Constitutionalization of General International Law

Theodor Schilling*


I — IntroductionI — IntroductionI — Introduction

This article proposes to discuss the question of a constitutionalization of general international law which aims at transposing the achievements of the constitutional State system, in particular in the protection of human rights, to the international level. Under this aspect, international law constitutionalization will be discussed in four steps and two excursus: defining the specific interest of the present research, defining the requirements necessary for a meaningful conception of international law constitutionalization, discussing the dynamism of the international legal order, describing the relevant legal facts as found on the ground, discussing a possible model rôle of intra-treaty constitutionalization, and discussing structural possibilities of a further international law constitutionalization. The discussion will center on the structural requirements of an international law constitutionalization and compare it with international law's structural givens.
The first step needs no further explanation at this point. The second step relies on important aspects of municipal constitutions — that they are the supreme law of the land i.e. apply throughout the respective country, and that they are entrenched — as well as on aspects of the constitutionalization of international organizations which widely is seen in the existence of (quasi )judicial treaty bodies and their systemizing jurisprudence. Taking into account the specificity of general international law, this step distinguishes three modes of constitutionalization: internationalization, generalization, and entrenchment especially of human rights law. As generalization of international law is dependent on the international community's possibility intentionally to make law i.e. to posit law,1 the article discusses this question in an excursus.
Moving on to the third step, it then describes the legal facts of international law constitutionalization as found at present. It finds an important inventory of internationalized human rights in treaties which are to some degree protected by treaty bodies. It finds some few generalized rules, and some relevant court protection to which individuals have access. It finds a certain international law entrenchment in the fact that treaties, and consensus law,2 are not easily amended. It also finds some entrenchment by proxy of human rights treaty rules in this sense that the States parties to those treaties are prohibited to participate in the making of rules conflicting with the treaty rules. But while it finds some jus cogens, it does not find the latter's rules entrenched. The constitutionalization aspects of the existence of treaty bodies and of systemization are then dealt with in a second excursus. The fourth step discusses structural possibilities of international law's becoming more generalized and entrenched. The article finds a generalization possibility in the international community's power to issue consensus law. But an entrenchment over and beyond the forms already found it finds neither legally possible nor normatively desirable, nor, indeed, factually likely.
Before plunging into the discussion of these issues, some short terminological remarks may be in place. There are two terms used, almost interchangeably, for the phenomenon this article is tackling: international law constitutionalization, and international constitutionalism.3 Properly speaking, the first describes a process,4 the second rather a mental attitude, or a thought system,5 which however — at least as used in municipal contexts — has a normative component, i.e. the limitation of the omnipotence of the legislature by superior legal principles, in particular human rights.6 Both are complementary. But in first line, it is submitted, what we experience as, or what is required for, the constitutionalization of general international law is a real legal development, not just a reconceptualizaton of existing international law. This article therefore shall stick with the term constitutionalization. That concept does not imply that international law at present does not have a constitution. Indeed, the notion of constitutionalization as a process presupposes a gradual development so that it is feasible that an entity having already achieved a certain constitutionality becomes further constitutionalized. This appears to be the case of the international community.7
II — Approaches to the Discussion of International Law ConstitutionalizationII — Approaches to the Discussion of International Law ConstitutionalizationII — Approaches to the Discussion of International Law Constitutionalization
The question of the constitutionalization of general international law can be approached from different angles, in particular under normative, descriptive, conceptual and doctrinal aspects. While these approaches cannot be independent from one another, for the purposes of a well structured discussion they should be kept separate. In this section, they are only presented; they will be discussed more closely later on.
1. Normative Approaches. Normative Approaches. Normative Approaches
Normative approaches deal with the questions of the desirability of international law constitutionalization, and of the type of international law constitutionalization which is deemed desirable. They inform the interest an author may have in the subject, and they may thereby also influence the concept of constitutionalization an author may use. They may focus on the interests of the international community —8 „the society of all societies“9 —, of individual States,10 or of the individual. However, the contrast between the interests of the international community and those of the individual is, at least in part, more apparent than real; at least in part, those interests may be seen to coïncide. This applies in particular under the aspect of the protection of human rights which of course is an individual interest universally recognized by municipal constitutions11 but is also at the centre of the preoccupations of the international community.12
Under the type of constitutionalization aspect, normative approaches may deal with the grand questions of the future of the international system, or the more pedestrian questions of „transpos[ing] the achievements of the constitutional State system to the international level, so that mankind is saved from sliding back into the barbarity of the past“.13 Among the grand questions, it may be discussed whether we should continue to abide by the constitutionalization of international law which is seen as having been under way for a long time, or whether that Kantian project might be replaced by an ethicalization of world politics as implemented by a benevolent hegemon.14 The discussion of international law constitutionalization under such an approach would have to deal with governmental structures or instititutions on a global level.15 Under the more pedestrian normative approach, the aim of international law constitutionalization can be seen in safeguarding, or reënforcing, municipal constitutional standards by elevating them to the international level. This requires the discussion of structural aspects of the substantive international law constitution which, under this approach, would have to reflect certain traits of municipal constitutions.16 In this context, possible desired results of international law constitutionalization have been seen in (i) a reënforcement of the legal position of the individual, (ii) a reënforcement of responsible government and of checks and balances in the international system, (iv) a further hierarchization of international law and (v) an increased respect for internationally guaranteed fundamental rights in the drafting and development of treaties.17 As becomes clear from that list, also this more pedestrian approach considers aspects of an international community.
2. Descriptive Approaches. Descriptive Approaches. Descriptive Approaches
Descriptive (legal facts) approaches look at the elements of constitutionalization of international law that can be found on the ground. Some may refer to phenomena of comparative constitutionalism i.e. the fact that one constitutional court may take into account decisions reached by a foreign court.18 Others consider the actual constitutionalization of treaty systems i.e. international subsystems as a move in the direction of the constitutionalization of general international law.19 Such an approach has found its clearest expression in an influential but not exhaustive list of constitutionalization aspects which covers (i) the taking into account of democratic requirements when recognizing a new State, (ii) the protection of human rights in international law, particularly in combination with control and sanctions, (iii) the increase of „constitutional systems of worldwide activities“, (iv) regional systems of integration20 and (v) international support for the constitutionalization in (failed) States.21
3. Conceptual and Doctrinal Approaches. Conceptual and Doctrinal Approaches. Conceptual and Doctrinal Approaches
Finally, under a conceptual approach it may be enquired into what reasonably may be considered as constituting international law constitutionalization, in other words, what minimum requirements the international legal system must meet to allow a meaningful talk about its constitutionalization. Closely related to conceptual approaches is a doctrinal approach which considers whether the minimum requirements for a meaningful talk of constitutionalization are compatible with international law, or special characteristics of international law.

A conceptual approach may start with the observation that constitutionalization, in accordance with its etymology, must be taken to mean that something (a set of norms) develops into a constitution, or that some other thing (an entity) gets a constitution. Generally, and in particular under structural aspects, the concept of constitution is most highly developed in the context of the State; therefore, a municipal constitution must be taken „as the clear, standard example of what [a constitution] is“.22 As the very notion of constitutionalization is dependent on this concept of constitution, it may be argued, it best takes its meaning therefrom. This approach would imply that meaningfully to talk about international law constitutionalization would require that international law deals with the four groups of regulations that have been identified as building-stones of „the architecture of modern constitutions“: those concerning questions of justice, in particular human rights, questions of the common good, in particular fundamental values, questions of political experience and wisdom i.e. organizational regulations, and questions of constitutional validity i.e. questions of hierarchy.23

But there are other, possibly competing, models of international law constitutionalization based not on municipal constitutions but rather on what is perceived as the constitutionalization of international organisations, or intra-treaty constitutionalization. One such model, originally developed in the framework of the European Community, is occasionally also applied to the systems created by the (European) Convention on Human Rights and Fundamental Freedoms24 (ECHR) and the United Nations Charter. Under that model, certain developments, often in connection with adjudicating bodies,25 within those international subsystems are seen as constitutionalization.26 Those developments include, importantly, the access to a court open to individuals to defend their rights, and the systemization, by court decisions, of the law applicable in the respective subsystem.27 While those aspects are also present, as a matter of course, in municipal legal systems, — the individual right of access to the courts even is a signature achievement of the constitutional State system — they are not there seen as defining the constitution.28

The term „constitutionalization“ also is used in the context of the system created by the Agreement Establishing The World Trade Organization (WTO) variously to describe a normative process in which the fundamental ideas of law and order in the WTO develop,29 or in which constitutional norms and structures are generated by judicial decision-making,30 or to describe the WTO's growing orientation towards community interests and the respect of global concerns.31 It is evident that these various concepts of constitutionalization, even if they take up aspects also discussed in the framework of the two concepts adduced above, are overall less demanding, and less encompassing, than the latter. This fact provides the conceptual basis for disputing, in terms of appropriateness, the use of the term constitutionalization as applied to the WTO. In this sense, it has been affirmed that, in the context of the WTO, the concept of constitutionalization is used much too loosely, covering many aspects and only indicating a general direction towards stronger State obligations, and that a constitutionalization stricto sensu of the WTO has not yet been achieved.32

4. The Interdependence of those Approaches. The Interdependence of those Approaches. The Interdependence of those Approaches
As stated above, the different approaches to international law constitutionalization are not independent from one another. Indeed, the conceptual approach — what requirements must be fulfilled to allow a meaningful discussion of international law constitutionalization — defines the subject also with respect to the other approaches.33 In particular, the legal facts approach presupposes a knowledge of what kind of facts must be looked for, in other words it requires a subsumtion of the facts found on the ground under a predefined concept of constitutionalization. To give an example: assuming that conceptually, international law constitutionalization presuppose the development, within the international legal system, of a class of norms jus cogens, empirically to enquire into the question whether this requirement is fulfilled is to ask whether there is factual evidence showing that international law effectively has developed jus cogens norms. Also, the „grand“ normative approach can maintain its premise of an ongoing international law constitutionalization only by reference to such a concept, taking into account, at the same time, the facts found on the ground, while the more pedestrian normative approach is intimately connected to the conceptual one. Inversely, the conceptual approach is of interest only in the context of a normative approach telling us why we should be interested in international law constitutionalization in the first place. Finally, the doctrinal approach is the most contingent of all. As it is not a meaningful question to ask whether international law as it exists is compatible with itself, this approach can only be applied to eventual future developments. It therefore is contingent on the normative and conceptual approaches chosen as well as on the facts found on the ground at present; it is meaningful only if those facts are found wanting under the aspects of the other approaches. To revert to the above example: if no factual evidence for the present existence of jus cogens norms should be found, and if that would be considered, under other approaches, a deficiency of international law constitutionalization, the doctrinal approach would ask whether international law is apt to develop such norms as a class.
III — The Discussion of International Law Constitutionalization — The Different Steps to be TakenIII — The Discussion of International Law Constitutionalization — The Different Steps to be TakenIII — The Discussion of International Law Constitutionalization — The Different Steps to be Taken
Given the interdependence of the different approaches to the discussion of international law constitutionalization, this article will try to combine them into a multi-faceted research of the topic. This research will involve four steps. Defining the steps to be taken in discussing the constitutionalization of general international law requires first to answer the normative question what purpose should be discussed as being served by international law constitutionalization. This question is at the same time the first step of the enquiry. For reasons shortly exposed below, it is whether international law constitutionalization offers, or can offer, guarantees of individual rights similar to those offered by municipal constitutions. The second step is the conceptual one more closely to define what is required of an international law constitutionalization answering that normative purpose. The third step requires a look at the legal facts found on the ground that are relevant to the normative purpose of the enquiry; it serves to ascertain in how far international law constitutionalization already has been achieved. The fourth step is rather doctrinal; it looks at the question whether a further international law constitutionalization along the lines discussed is structurally possible, given the specificities of international law. As this is at the same time a question of lex ferenda, other such questions — the normative desirability and the factual likelihood of such a development — also will be dealt with within the fourth step.
1. The First Step: The Specific Interest of the Present Research. The First Step: The Specific Interest of the Present Research. The First Step: The Specific Interest of the Present Research
This is the point to state the specific interest of the present research. It is the more pedestrian normative approach described above.34 Under this approach, international law constitutionalization will be discussed in this article as a possible means of transposing the achievements of the constitutional State system to the international level. This is not a completely arbitrary decision; rather, this approach appears to be sufficiently realistic, and therefore of sufficient practical interest, to justify the research proposed.
2. The Second Step: Requirements of an International Law Constitutionalization. The Second Step: Requirements of an International Law Constitutionalization. The Second Step: Requirements of an International Law Constitutionalization
In this second step, the enquiry is to the traits international law must present to be able to incorporate and protect national constitutional standards, in particular human rights standards. Under one conceptual approach, those traits should correspond to traits constitutional State systems have developed to protect human rights. Of the four groups of constitution building stones identified above,35 these are the traits concerning questions of justice, political experience and constitutional validity. Under the normative approach here chosen, this conceptual reason for looking to typical State constitutions is confirmed, perhaps more importantly, by a substantive reason: the structural characteristics municipal constitutions have developed over time generally serve the purpose to guarantee the substantive contents of those constitutions — i.e. individual rights — to the whole of the population and to protect those contents from being changed frivolously. While one should not be too dogmatic about this parallelism between municipal constitutions and international law constitutionalization — otherwise, the pecularities of international law would be left out of account —, in principle, if international law is to protect those rights, it will have to show the same, or similar, characteristics.
This needs some detailing. In municipal legal systems, it is customary to distinguish between informal and formal rules of constitutional law i.e. between those rules that are fundamental to a given State, without necessarily being part of its formal constitution, and that constitution, not all of the rules of which are necessarily of fundamental importance.36 Under this distinction, rules may be considered, as a matter of academic presentation and possibly without legal consequences, as constitutional, in a certain sense and irrespective of any formal criteria, exclusively for their fundamentality. Typically, all of these — formal and informal — municipal constitutional rules have that in common that they are the law of the land, i.e. they apply throughout the territory of the entity constituted by them, while only the formal rules are the supreme law of the land i.e. take precedence, again typically,37 over all the other law, in particular later statute law, of the entity; only they are generally considered as entrenched.

„Entrenchment“ is a felicitous term to describe one aspect of what generally is dealt with in civil law systems under the heading of „(derogatory) hierarchy of norms“: it makes palpable that what matters in this context is not the superiority of a rule as such, giving it primacy over certain other rules, but the relative protection of one rule (the entrenched rule) against being abrogated by a certain type of other (inferior) rules (relational entrenchment). But the term entrenchment is also used in a non-relational context. Here, it simply means that it is procedurally difficult, or even impossible, to amend, or to abolish, the rule thus entrenched (procedural entrenchment). In this sense, of course, statute law too is entrenched. Both types of entrenchment are important for the present discussion.

The entrenchment of constitutional provisions implies their judicial protection against encroachments by the legislature. The American system provided for such a protection of the constitution, and with it of the human rights amendments, from early on.38 Its example was followed by many of the later constitutions which provide judicial protection for human rights also against such encroachments, and, quite recently, also by the French system which had relied, till 1971,39 on the volonté générale as expressed by the National Assembly, and, in an idiosyncratic way, by the English system which had relied, till 1998,40 mainly on its political culture. This entrenchment of human rights provisions, policed by the courts, has proved rather successful in keeping encroachments by politics-as-usual at bay.41
Other conceptual approaches to constitutionalization,42 highlighting different aspects which, however, are present as a matter of course also in municipal constitutions, should also be taken into account when considering international law constitutionalization: on the structural level, a certain systemization of the law, and, on the procedural level, individually available judicial protection of those rights.43 Indeed, in well developed municipal legal systems it is possible to see the courts at the center of the system as it is their function alone to hand down binding decisions i.e. to transform indeterminability of the law into determinability.44

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