On the Constitutionalization of General International Law

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In this result, the normative approach here chosen is on all fours with requirements flowing from the assumption of a proto-democratic character of the international community relying on the (tenuous) democratic legitimation of international law which can be expressed in this way that „general international law bases its legitimacy on decisions of, ideally democratic, national processes of decision-making“.295 Under the aspect of (proto )democracy, any immutability of the law, including international human rights law, must be anathema. This applies with particular force to jus cogens according to its contents which is completely outside State control and by necessity left to the determination by „unaccountable“ (George W. Bush) international judges. The ICTY's „jurisprudence commando“296 in Furundzija,297 elevating the proscription of torture to the rang of jus cogens, is a clear example of an attempt at such judicial law-making. It could succeed only, insofar as it was successful (as it was only in part concerning the legal consequences flowing from a violation of the proscription), because there existed a consensus of the international community on the proscription of torture (although not necessarily on its relational entrenchment). Indeed, it is suggestive that those few jus cogens rules recognized in judicial decisions closely reflect the few generally admitted rules of international consensus law (which are procedurally entrenched as such, and which for their part reflect what might be perceived as natural law rules).
Doubts as to the normative desirability of jus cogens, and indeed as to the conduciveness of that concept to sound law, extend to other purported legal consequences of jus cogens rules. It appears that it might be a more convincing approach e.g. to finding a solution of the conflict between the prohibition of grave violations of human rights and the law of State immunity, perceived in Ferrini,298 to try to balance the respective values protected by those purportedly conflicting rules. In this way, while the values for which jus cogens according to its contents is considered as jus cogens in the first place are taken into account, as clearly they must be, the killer argument „jus cogens“ could be avoided, and a true balancing between the different values involved could take place, of course with a less certain result. The only legal requirements for such a balancing exercise are the realization that both sets of values are represented by international law rules, and that that law forms a system.
Such a balancing exercise would also permit to take into account the democratic legitimacy of an envisaged solution. Indeed, transposition of the acievements of the constitutional state system cannot be restricted to the substantive achievements i.e. human rights but must extend, as far as possible, to procedural achievements including the protection of individual rights and, of particular interest in the present context, democracy. Under this aspect, it is doubtful whether the restriction of sovereign immunity which some decisions infer, as a matter of international law, from the jus cogens character of the proscriptions of torture and war crimes has any democratic legitimacy. This inference appears to be rather at odds with State practice. It has been remarked, correctly, that it was difficult for the [Italian Supreme] Court to come to terms with the manifest scarcity of useful judicial precedents. ... The only decisions on which the Court can eventually rely are decisions taken by US judges on the basis of the 1996 amendment to the Foreign Sovereign Immunity Act, ... However, the dubious value of those judgments is indirectly admitted by the Court on account of the unilateral nature and political overtones of the US approach.299

These overtones are underlined, and the U.S. approach discussed is countermanded, as a matter of international law, by the quite uncompromising stance the U.S. itself takes in all questions concerning its own, and its soldiers' and officials', immunity in particular from the jurisdiction of the ICC.300 But it is not only the U.S. which insists strongly on its sovereign immunity before foreign or international courts. Rather, its view is shared by proponents from the supposedly opposite camp. Indeed, it has been claimed that „the neo-colonial international law which has assumed shape in the last decade has been premised on the retreat of the state. ... In the face of these developments to condemn the principle of sovereignty is to side with powerful states against the weak“.301 In view of this opposition from both sides of the international power spectrum it appears doubtful whether an international law development leading to important inroads into State immunity has any democratic legitimacy at all.

Therefore, under the aspect as well of the relational entrenchment of jus cogens rules as of the legal consequences purportedly flowing from such rules such entrenchment is incompatible with the democratic legitimation of international law and therefore cannot be considered as normatively desirable under the approach here chosen.
cc) Factual Likelihood4cc) Factual Likelihood4cc) Factual Likelihood

A relational entrenchment proper of general international law rules, we have just stated, is neither legally possible nor normatively desirable. Of course, there might be different opinions as to these two points. But a — purported — relational entrenchment is also factually unlikely. In municipal constitutions, relational entrenchment of the constitution is a means for the framers of the constitution, or of an amendment to the constitution, to withhold the power to modify their enactment from the general legislature.302 But there is, in international law, no distinction comparable to that between those different constituent and legislative bodies. There is only the international community which can act indirectly in such a way that customary law emerges, or directly by the issuance of consensus law. There is no reason whatsoever for the international community to take away from itself the power to modify or to annul rules it has made itself, or to make the exercise of this power unduly difficult.303 Therefore, such an entrenchment, even if it were possible, would be very unlikely to happen.

IV — Conclusion1IV — Conclusion1IV — Conclusion

This article has discussed the question whether general international law constitutionalization may be, under structural aspects, a means of transposing the achievements of the constitutional State system, in particular in the protection of human rights, to the international level. It does not come up with a clear-cut answer. On the one hand, many rules of constitutional protection have been internationalized, mainly by multilateral treaties. Those rules have achieved a remarkable degree of protection, substantively, because it is very difficult to change existing treaties, and procedurally, as many of those treaties provide for judicial or quasi-judicial treaty bodies to control the States parties' respect of their obligations. Those obligations include the one not to act in a way that would frustrate the objects of those treaties. In a different development, a certain systemization of international law has been achieved, correlating certain fundamental human rights rules with other sectors of international law and thereby arguably enhancing their protection. On the other hand, while the international community is able to issue international consensus law, and thereby e.g. to generalize human rights protection globally, up to now it has not made extensive use of this ability. Any hope that it will do so in the future, near or far, may well prove utopian. But insofar as the international community has issued, or will issue, such consensus law, while an entrenchment of that law against amendments or abolition by later consensus law appears neither feasible nor likely, nor even normatively desirable, it only may be amended by the issuance of such law which can be prevented by any one important group of States.

Overall, general international law has achieved a remarkable degree of constitutionalization. A legal framework for transposing the achievements of the constitutional State system to the international level appears to be in place. Considering the glass as half full, one might remark that most human rights provisions that are familiar from municipal constitutions have been internationalized. Considering it as half empty, however, one must remark that nearly none of those rights is part of general international law. The responsibility henceforth to make possible the issuance of further human rights rules as consensus law falls squarely in the field of those States whose objections up to now have prevented such an extension of the scope of international human rights protection. At the present stage of international law development, and as long as those States form an important group of the international community, it appears there is nothing that community can do about it against the opposition of those States.

* LL.M. (Edin.), Dr. jur. utr. (University of Würzburg), Lawyer in the translation directorate of the Court of Justice of the EC, Extra-ordinary (apl.) Professor, Humboldt University at Berlin, Global Emile Noël Fellow from Government, New York University School of Law — I am grateful for very helpful comments on an earlier version of this paper I have received from Dieter Grimm and Joseph H.H. Weiler. The usual disclaimer applies.

1 On the concept of posited law, cf. infra note 58.

2 On this concept, cf. text at and after infra note 72.

3 Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 EJIL 907 (2004), passim, esp. 931, speaks in a similar context of „constitutionalism beyond the state“. — Another term similarly used is legalization; cf. Judith L. Goldstein et al., Introduction: Legalization and World Politics, in Legalization and World Politics 1 (Judith L. Goldstein et al., eds., 2001) at 3: „The definition of legalization adopted in this issue contains three criteria: the degree to which [international] rules are obligatory, the precision of those rules, and the delegation of some functions of interpretation, monitoring and implementation to a third party.“

4 Cf. Brun-Otto Bryde, Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts, 61 Der Staat 61 (2003) at 62.

5 Philip Allot, The Emerging Universal Legal System, 3 International Law FORUM du droit international 12 (2001) at 16 states that „[t]he first and most important step in meeting the challenge of international constitutionalism is to re-make our international legal worldview, to begin to articulate the eventual structure of a universal legal system“.

6 Cf. e.g. Bryde, supra note 4, at 62, with further references.

7 Cf. Allot, supra note 5, at 16: „We are now beginning to see that old international law was essentially a rudimentary international constitutional law, providing the fundamental structures of a primitve form of international society.“ And cf. Jürgen Habermas, Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?, in idem, Der gespaltene Westen 113 (2004) at 131.

8 Cf. Jochen Abr. Frowein, Konstitutionalisierung des Völkerrechts, 39 Berichte der Deutschen Gesellschaft für Völkerrecht 427 (2000); English summary at 447: „Constitutionalization of public international law means recognition of interests of the community of states and the introduction of mechanisms for their implementation“. — On the concept of the international community cf. e.g. Bruno Simma and Andreas L. Paulus, The ,International Community: Facing the Challenge of Gobalization, 9 EJIL 266 (1998) at 267. And cf. Prosper Weil, Le droit international en quête de son identité. Cours général de droit international public, 237 Recueil des Cours (RdC) 9 (1992 VI) at 306: „C'est là ... la notion du droit international actuel la plus fréquemment invoquée, la plus riche aussi en potentialités de tous ordres“. And cf. Jochen Abr. Frowein, Die Staatengemeinschaft als Rechtsbegriff im Völkerrecht, 12 Liechtensteinische Juristen-Zeitung 3 (1991). Doubtful Yasuaki Onuma, Debate contribution, 16 EJIL 264 (2005).

9 Allot, supra note 5, at 16.

10 This appears to be the approach underlying the work of some Third World scholars; cf. e.g. B.S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15 EJIL 1 (2004), but also of many sources close to the U.S. Government, cf. e.g. John R. Bolton, International Law and American Sovereignty, available at http://www.fed-soc.org/pdf/bolton.pdf, visited May 12, 2005.

11 Cf. e.g. Jürgen Habermas, Kants Idee des ewigen Friedens aus dem historischen Abstand von 200 Jahren, in idem, Die Einbeziehung des Anderen. Studien zur politischen Theorie 192 (Frankfurt a.M. 1996) at 210 et seq. And cf. Biaggini, supra note 16, at 458.

12 Cf. in particular Article 1 (3) of the UN Charter and the instruments quoted in infra notes 114 to 123. Even fighting terrorism — but arguably not maintaining the security in countries like Afghanistan and Iraq — must step back behind human rights protection; compare Security Council Res. 1456 (2003), Annex para. 6, with Res. 1386 (2001) and 1511 (2003).

13 Daniel Thürer, The failed State and international law, 81 International Review of the Red Cross (IRCR) 731 (1999-No. 836) at 760.

14 Habermas, supra note 7, at 115-6.

15 Cf. e.g. Habermas, supra note 7, at 131-45.

16 Cf. Giovanni Biaggini, Die Idee der Verfassung Neuausrichtung im Zeitalter der Globalisierung?, Zeitschrift für Schweizer Recht 445 (2000) at 469.

17 Biaggini, supra note 16, at 473-4.

18 Cf. Oliver Gerstenberg, What International Law Should (Not) Become. A Comment on Koskenniemi, 16 EJIL 125 (2005) at 129, referring to U.S. Supreme Court, Lawrence v. Texas, 123 SCt 2472 (2003). An interesting overview on the U.S. Supreme Court opinions dealing with international or foreign decisions is given by Ruth Bader Ginsburg, A decent Respect to the Opinions of [Human]kind: The Value of a Comparative Perspective in Constitutional Adjudication, available at: http://www.asil.org/events/AM05/ginsburg050401.html, visited Apr 7, 2005. And cf. in general Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int'l LJ 191 (2003).

19 Miguel Poiares Maduro, The Constitutional Challenge of Globalisation Protecting Common Values, available at http://www.coe.int/T/E/Com/Files/Themes/Identity/Col3_DiscMaduro.ASP#P14_1020, visited May 12, 2005, states that „developing forms of regional integration ... can even be conceived as intermediary steps on the way to a global polity that may take the constitutional form tested in theses regional systems“. And cf. Kathrin Blanck et al., Conference Report — Europe's Constitutionalization as an Inspiration for Global Governance? Some Viennese Conference Impressions, 6 German L J 227 (2005) at 243: „There was obvious agreement among the panelists that the process of European constitutionalization may be an important foundation towards a uniform approach that might, in the long run, shape the development of the global legal order.“

20 But cf. Richard A. Falk, The Declining World Order. America's Imperial Geopolitics 46 (2004), who states that „[a]lmost any generalization about regionalism seems suspect“.

21 Frowein (2000), supra note 8, at 429-44, 447. The further points i.e. (vi) the fact that the monopoly of the Security Council concerning the use of force needs complementary regional mechanisms and (vii) that the same applies for the implementation of constitutional principles by the Security Council appear to reflect rather a normative approach.

22 Cf., for law in general, H.L.A. Hart, The Concept of Law (2nd ed. 1994) at 216. Of course, „there is an important difference between saying ,this is a clear case of X' and giving a general definition of X“: William Twining, The Ratio Decidendi of the Parable of the Prodigal Son in William Twining, The Great Juristic Bazaar. Jurists' Texts and Lawyers' Stories 461 (2002) 474 with further references.

23 Cf. Günter Frankenberg, The Return of the Contract: Problems and Pitfalls of European Constitutionalism, 6 ELJ 257 (2000) at 266-73.

24 of Nov 4, 1950, entry into force Sep 3, 1953, UNTS vol. 213, p. 221.

25 Cf. e.g. Rainer Wahl, Konstitutionalisierung Leitbegriff oder Allerweltsbegriff? in Wandel des Staates vor den Herausforderungen der Gegenwart. Festschrift für Winfried Brohm zum 70. Geburtstag 191 (Dieter Lorenz et al., eds; 2002) at 201.

26 Cf. e.g. the impressive but far from exhaustive list in Deborah Z. Cass, The ,Constitutionalization' of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade, 12 EJIL 39 (2001) 40-1, note 3.

27 Bryde, supra note 4, at 67 sees that as one task of constitutional courts.

28 More generally, a constitutionalization of global regimes has been seen in „liberating the universalizing potential of the regime[s]“ and at the same time „ensur[ing] that such regimes are reflexively connected with their social environments“: Andreas Fischer-Lescano & Gunther Teubner, Reply to Andreas L. Paulus: Consensus as Fiction of Global Law, 25 Mich. J. Int'l L. 1059 (2004) at 1072.

29 Cf. Meinhard Hilf, Die Konstitutionalisierung der Welthandelsordnung. Struktur, Institutionen und Verfahren, 40 Berichte der Deutschen Gesellschaft für Völkerrecht 257 (2003).

30 Cass, supra note 26 at 72.

31 Cf. Wolfgang Benedek, Die Konstitutionalisierung der Welthandelsordnung. Kompetenzen und Rechtsordnung der WTO, 40 Berichte der Deutschen Gesellschaft für Völkerrecht 283 (2003).

32 Wahl, supra note 25, at 206. — Cf. also Deborah Z. Cass, The Constitutionalization of the World Trade Organization, Trading Democracy (2005).

33 Cf. Roger Cotterrell, The Politics of Jurisprudence (1989) at 86.

34 Cf. text at supra note 13.

35 In the text at supra note 23.

36 Cf. e.g. Ekkehard Stein, Staatsrecht (16th ed. 1998) at 11-2.

37 There used to be exceptions; flexible constitutions like the French Charte of 1814 and the Italian constitution of 1848 could be amended in the regular legislative procedure. On the latter cf. e.g. G. Liet-Veaux, La fraude à la constitution, Revue du droit public 116 (1943) at 118. Also the German constitutions agreed upon between the prince and the people (Konstitutionalismus), while not open to such amendment, were not entrenched against later laws; cf. e.g. Rainer Wahl, Der Vorrang der Verfassung, 20 Der Staat 485 (1981) at 491-3.

38 Cf. U.S. Supreme Court, Marbury v. Madison, 1 Cranch 137 (U.S. 1803).

39 Conseil constitutionnel, Décision no 71-44 of Jul 16, 1971.

40 Human Rights Act 1998.

41 Cf. most recently House of Lords, Opinions of the Lords of Appeal for Judgment in the Cause A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), judgment of Dec 16, 2004, [2004] UKHL 56.

42 Cf. text at supra note 25.

43 This aspect should be kept separate from the question of entrenchment which does not require such individual availability.

44 Niklas Luhmann, Das Recht der Gesellschaft (1993) at 320. And cf. Andreas Fischer-Lescano, Die Emergenz der Globalverfassung, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) (Heidelberg J Int'l Law [HJIL]) 717 (2003) at 737-8.

45 Wahl, supra note 25, at 201 stresses that the present development from a State-centred international law to an international law recognizing superior obligations is a far-reaching one and requires many intermediate stages not all of which are leading already to a constitutionalization of international law.

46 Cf. Weil, supra note 8, at 219: „Le système international comporte une forte dose de polynormativité“.

47 And cf. Frowein (2000), supra note 8, at 435-8, 447 sub 4.

48 Cf. Weil, supra note 8, at 224: „Dès lors que la source ultime des toutes les normes internationales se trouve dans la volonté des Etats et qu'aucune volonté étatique ne peut prédominer sur les autres, la hiérarchie des normes est tout simplement inconcevable“.

49 This is an excursus only in this sense that the following considerations do not fit well into the substantive discussion of international law constitutionalization as an answer to the erosion of municipal constitutions. Of course, the question of the dynamism of the international legal order is very much a question of that order's constitutionalization — indeed, it must be subsumed under the questions of political experience and wisdom identified above, text at supra note 23, as one of the building-stones of modern constitutional architecture — and it is even highly relevant to the substantive discussion here undertaken, as the fourth step infra (II 6) clearly will show.

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