Is constitutionalism

made for the postnational

context?

Atanas Stoyanov, Emma Ferencz, Marta Matosek

Seminar: Comparative Political Institutions Week 3, October 9, 2014

Overview

1. Postnational constitutionalism: definitions and context

2. History and different approaches

3. Challenges of PC

4. Case Study: USA vs EU in GMO debate

5. Conclusions

the 1990’s: challenges and answers

• Emergence of PC–end of Cold War - idea of “international community”

–increasing institutionalisation of intl law and politics (World Trade Organisation, UN SC)

–economic globalization• Why constitutionalism?

–attempt to establish continuity–avoid normative rupture–thin enough to be translated into the PSphere

Models of Global Postnational Order

They differ as they are centring on:

1. checks • limitation of political power• human rights1. institutional structure• constitution as a critical tool1. discourse• pluralism & dialogue

Historical roots of constitutionalism

• constitution: – a reference to a set of values (the rule of law,

individual liberty, democracy, self-government)

– “the limitation of government by law” Limitational interpretation• 17th century England• established limits to royal power• could not be unilaterally terminated by the kings• shaped the system

Core political content of constitutionalism in the modernity

Foundational constitutionalism• American & French revolutions• comprehensive; basis for the entire system of

government• Thomas Paine: “A constitution is a thing

antecedent to a government, and the government is only the creature of the constitution”

• strong link with the ideas of the Enlightenment

Foundational Constitutionalism today

• carries the legacy of foundational constitutionalism: – agency & popular sovereignty– tools for translating moral ideas into

institutional practice• Problematic:

– the tension between constitutional constraint & democratic expression

– constitution becomes foundational in a radical sense

Perils of the postnational space towards constitutionalism

• multiplicity of unconnected centers of governance;

• require a greater institutional transformation;

• rules to define the relationships;

• no uncontested collective that could express its will in ‘constitutional’ terms

Diversity as an issueTrade-offs and limitations

Trade-offs: compromises we have to make to find a pragmatic solution that addresses the problem of diversity • Integrative stabilizing force of constitutionalism;• Effectiveness of collective decision making ; • Cooperation of elites; • Tensions between the different levels

Is the PNC feasible/adequate?

Habermas: Domestic politics are being extended to the international level

Young: Tensions between national and global self-determination

Hardt: distribution of powers among institutions is left to powerful geopolitical interests

Criticism of Krisch

• a false dichotomy between ‘constitutional and pluralist’;

• the case studies in the book provide ground for an alternative view: “a rights based constitutional order is being constructed on pluralist foundations”;

• “fails to address variation in its evaluation of institutional alternatives in which some hierarchy at times is preferable”

PC and Pluralism:Dispute between USA and EU over GMO➔ difference in approach to GMO:

permissive (US) vs precautionary (EU)

➔ International legal ‘battle’:◆ WTO Agreement on Application of Sanitary and

Phytosanitary Measures (SPS Agreement) - permissive◆ Biosafety Protocol - precautionary◆ 2003-2006 US vs EU case in WTO Dispute Settlement

Body◆ US suspends its WTO proceedings to give EU

‘opportunity to demonstrate meaningful progress’

PC and Pluralism:Dispute between USA and EU over GMO

➔ Horizontal pluralism: Global Food Safety Complex ◆ irregularities/loopholes in the intl laws◆ fragmentation and proliferation of treaties vs limited

unity and incoherence of intl law◆ multiple of intl bodies claiming to define its status

PC and Pluralism:Dispute between USA and EU over GMO

➔ Vertical pluralism: National, European, WTO law◆ distancing national law from intl law, US Congress,

EC◆ flexibility of EU institutions towards intl law◆ pluralism dependant upon legal but also technical

and social factors

Conclusions

➔ divergent dynamics within P-NC➔ locus of authority - pluralist➔ various actors rebalancing participation in intl

law➔ insisting on state sovereignty (freedom from

imposition) ➔ is FC too robust for the global needs? ➔ mixed approach

Questions

1. Is constitutionalism made for the postnational context?

2. Should there be any limits to global constitutionalism?

3. Which trend will prevail in the future?

References

• Krisch, N. (2010), Beyond constitutionalism: The pluralist structure of postnational law (Oxford: Oxford University Press).

- chapter 2: The promise and perils of postnational constitutionalism, pp. 27-68- chapter 6: Pluralism in postnational risk regulation, pp. 189-224

• Peters, Anne: The merits of global constitutionalism, in: Indiana Journal of Global Legal Studies, Vol. 16, No. 2, 2009, pp. 397-411

• Shaffer, Gregory: A Transnational Take on Krisch’s Pluralist Postnational Law, Oxford University Press, 2010. Pp. 330

• Sweet, Alek Stone: The Structure of constitutional pluralism: Review of Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Post-National Law, Oxford University Press and New York University School of Law, 2013, p.1-10

Thank you!

Emma, Atanas & Marta