Situating the debate on global constitutionalism

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I•CON (2010), Vol. 8 No. 3, 611–635 doi: 10.1093/icon/moq021

Situating the debate on global constitutionalism

Christine E. J. Schwöbel*

The question of whether a global constitution exists or is emerging, and, if so, what form it takes, is one of the most intriguing and controversial topics of recent international legal debate. The article attempts to shed some light on this debate from the perspective of public international law by situating the predominant visions of global constitutionalism in relation to four dimensions that together make up the bulk of contemporary contributions. I call these four dimensions: social constitutionalism, institutional constitutionalism, normative consti-tutionalism, and analogical constitutionalism. Under critical scrutiny, it becomes apparent that, for all their complexity and diversity, the prevailing notions of global constitutionalism are all confined to the trajectories of liberal democratic political thought. This is determined by way of the identification of five of the key themes of liberal democratic constitutionalism. It is put forward that such confinement gives rise to concerns regarding the limitations of the current debate on global constitutionalism.

IntroductionDebates on constitutionalism in international law have been increasing amidst a turn toward greater cooperation in the international sphere and a growing use of inter-national legal language to rationalize such cooperation. This has led to an influx of such terms as “international community,” “global rule of law,” and “global governance”—all endeavours to unite the global actors under a single umbrella. Meanwhile, the increased turn to cooperation in the international—or rather transnational—sphere

* Dr., LLM, Grotius Centre of International Legal Studies, Leiden University. Email: cschwoebel@ campusdenhaag.nl. This article grew out of my Ph.D. dissertation. I am greatly indebted to Susan Marks, my former Ph.D. supervisor, for her continued engagement with and thoughtful contribution to my work. I would also like to thank Patrick Capps and Malgosia Fitzmaurice for their helpful comments in my viva voce.

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has also prompted a debate regarding the fragmentation of international law.1 One legal umbrella that has been suggested as an expression of greater cooperation and, possibly, as a means to manage fragmentation is that of global constitutionalism.2

There is, of course, no single recognized global constitution; rather, there are a number of visions of what a global constitution is and should be and what is spur-ring constitutionalization in the international sphere. The categorization of the four dimensions of social, institutional, normative, and analogical constitutionalism attempts to bring into focus the prevalent ideas which they entail.3 These dimensions are by no means finite; they are one way of describing the paramount voices contrib-uting to the debate on global constitutionalism in international legal perspective. It will be demonstrated below how these four dimensions of global constitutionalism, al-though seemingly different, are in fact all comprised of five key themes of constitution-alism. These five key themes, the building blocks of the contemporary debate, are also central tenets of the liberal democratic tradition of constitutionalism. Such unearth-ing of the foundations of global constitutionalism raises concerns as to whether these precepts are extrapolated from the national sphere to the international sphere in a manner that leaves no room for questioning their suitability with regard to the par-ticularities of the international sphere.

Since all categorizations are also simplifications, some decisions made at the outset should be explained: first, in order to be as inclusive as possible, global constitutionalism is not predefined here; rather, any ideas that use the terminology of both universalism and constitutionalism to rationalize certain developments or changes in the inter-national sphere have been included as contributing to the overall debate.

Second, no distinction is made between the views that a specific set of norms are, will be, or should be the global constitution. Suggestions for global constitutionalism have been made that focus on a specific document or a specific set of norms, declaring that the document in question or the norms in question amount to “a global constitution”

1 Fragmentation has become the object of much scholarly attention particularly since the ILC report on fragmentation initiated by Martti Koskenniemi: Report of the Study Group of the ILC, 58th session (2006) A/CN.4/L.682 [8]. According to Jan Klabbers, fragmentation, constitutionalization and verticali-zation “form the holy trinity of international legal debate in the early 21st century,” Jan Klabbers in Jan Klabbers, Anne Peters, Geir Ulfstein, The Constitutionalization of International Law 1 (2009).

2 The constitutionalism that is the object of this article has been referred to as “international constitu-tionalism,” “transnational constitutionalism,” or “global constitutionalism.” Although these terms are often used synonymously, the following will discuss constitutionalism that is believed to concern matters between states (international constitutionalism) as well as constitutionalism that is believed to concern matters beyond States (transnational constitutionalism). Worldwide visions of constitutionalism will be presented; the term “global constitutionalism” thus seems most fitting.

3 The four dimensions are briefly introduced in Christine E. J. Schwöbel, Organic Global Constitutionalism, 23 Leiden J. Intl. L. (LJIL) 529–553 (2010). For a different way of organizing the debate, see Jeffrey L. Dunoff and Joel P. Trachtman, A Functional Approach to International Constitutionalization, in Jeffrey L. Dunoff and Joel P. Trachtman ed., Ruling the World? Constitutionalism, International Law, and Global Governance (2009).

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Situating the debate on global constitutionalism 613

(a descriptive approach). At the same time, another branch of global constitutionalist thought deals with constitutionalization, that is, the process that leads to a global con-stitution. Some scholars are of the opinion that, while one cannot identify the existence of a global constitution, as yet, one can make out specific constitutional content in the international sphere. This content is mostly believed to be coalescing in a global con-stitution or in a multilayered system of constitutions (another descriptive but less as-sertive approach). Furthermore, it is suggested that certain features of the international sphere should be part of a debate on constitutionalism (a normative approach). All these approaches are considered part of the debate on global constitutionalism.

The third decision was to include debates that are predominantly categorized as pertaining to international relations or political philosophy insofar as they have influenced public international law. Although the study was one of international law, certain concepts not traditionally associated with public international law have influenced the debate in a way such that they cannot reasonably be excluded. Finally, some of the named authors fall into more than one category or, indeed, might clas-sify themselves as belonging to a different category than the one to which they have been assigned. I have attempted to group the contributions according to the defining notions of global constitutionalism put forward by the relevant author.4

1. Social constitutionalismSocial constitutionalism is a vision of global constitutionalism that views the inter-national sphere as an order of coexistence. Concerns about participation, influence, and accountability are at the center of these visions.

1.1. The international community school

Advocates of the view that a global constitution of the international community exists or that such a constitution is emerging have previously been dubbed “the international community school.”5 This school of thought places particular weight on the notion of a paradigm shift that has allegedly taken place, showing a move away from a sover-eignty-centered system of international law to a value- or individual-oriented system.6 The idea of the international community as an integrated, comprehensive legal system is found in many notions of global constitutionalism; indeed, the existence of an international legal order would appear to be a prerequisite of a global constitutional

4 Such grouping is, needless to say, nevertheless a subjective enterprise.5 See Bardo Fassbender, The United Nations Charter As Constitution of the International Community 36 Col.

J. Intl. L. 546ff. (1998).6 See e.g., Christian Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a

New Century,” General Course on Public International Law 281 Recueil des Cours de l’Académie de Droit International 237 (1999).

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order.7 While the proponents of the international community school share this ter-minology, the definition of “international community” itself can vary, particularly in terms of its subjects, shaping the relevant ideas of global constitutionalism. “Inter-national community” can be a reference to an international community of states, a community of all subjects of international law, or an international community of global citizens. Bardo Fassbender, one of the eminent proponents of the “international com-munity school” and the first to coin the term, considers global constitutional law to be a subdiscipline of public international law. In his opinion, the constitutional law of the international community has an entirely independent existence vis-à-vis domestic constitutional law, although it may be influenced by constitutional ideas and practices developed in a national context.8 Fassbender is a strong advocate of making what he believes are the already apparent elements of global constitutionalism more concrete; therefore, he encourages viewing the UN Charter as the global constitution.9

Christian Tomuschat is also a notable proponent of the idea of an integrated inter-national community.10 His emphasis with regard to global constitutionalism lies on the limitation of power, on the one hand, and the related idea of the systematiza-tion of law, on the other hand. The purpose of constitutional rules for the limitation of all forms of political power, international and municipal, is, in his view, for the furtherance of international peace, individual rights, and the rule of law. The limi-tation of power and the associated principles of accountability and participation are well-known precepts of liberal democratic thought and are among the central tenets of constitutional democracy in many national legal systems. Tomuschat’s view also rests strongly on the assumption that international law can direct and control social reality, in general, and political power, in particular. He breaks with the voluntarist tradition in international law by claiming that states are indeed the instruments of the international community.11 Such direction happens on the basis of the standard-ization of international law, meaning the idea of law as a system. The notion of law as a system includes the necessity of stabilizing factors; for example, the entrench-ment of certain rights or principles in constitutions. It also concerns the notion of frameworks—such as the legal framework of a constitution—which act as directing and guiding forces in any legal issue. The limitation on power and the systematiza-tion of law are two of the recurring and pivotal themes of global constitutionalism in the contemporary debate.

7 The belief that the international sphere is an international legal order is a common assumption of con-tributors to the debate on global constitutionalism. Many, or possibly all, of the authors mentioned below could therefore also be categorized as belonging to the international community school.

8 Bardo Fassbender, The Meaning of International Constitutional Law in Ronald St. John Macdonald and Douglas M. Johnston ed., Towards World Constitutionalism 838 (2005).

9 Id. 846ff.; see below at section 2 (Institutional Constitutionalism).10 Tomuschat 1999, supra note 6, at 23.11 Id. 95 (emphasis added).

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1.2. Civil world law

Visions of civil world law that include the idea of global constitutionalism are predi-cated on the centrality of popular legitimacy. Gunther Teubner’s vision of global con-stitutionalism includes the existence of a number of “global civil constitutions” that express a “constitutionalization of a multiplicity of autonomous subsystems of world society.”12 Teubner expands on Niklas Luhmann’s pioneering work on civil society by dismissing any attempts to apply the circumstances of the nation-state uncritically to world society.13 He maintains that the decentralization of politics in world society must be sufficiently taken into account.14 Three central trends of the twenty-first cen-tury are explained as being the premises of modern-day constitutionalism: digitaliza-tion, privatization, and global networks.15 Along with the emphasis on participation, Teubner touches on the importance of rights for constitutionalism. He distinguishes between the organizational and the spontaneous part of a constitution, with the latter having value-orientation as its function. The organizational part is concerned with formal functions such as participation.16 Individual rights are, of course, central to many domestic constitutions, often in the form of a bill of rights, and are also one of the crucial themes of global constitutionalism. In social constitutionalism, individual rights are often considered necessary but are not the defining feature—the defining features are, rather, the democratic functions.17

Andreas Fischer-Lescano describes the global legal system as divided into a center and a periphery. The courts (international and those national courts deciding on global remedies) make up the center, while the periphery is made up of all the other areas of the legal system, namely, states, nongovernmental organizations, and other actors of civil society.18 The “Global Constitution,” which encircles this global legal system, is divided into (a) jurisdiction norms (global remedies rules), (b) jus cogens, and (c) norms about norms (article 38 International Court of Justice [ICJ] Statute).19 Fischer-Lescano believes that global constitutionalism must be understood, primarily, as political global constitutionalism. He, like Teubner, believes that political global constitutionalism must transcend traditional public international law (and its pre-dominant limitation to states) in order to include civil society. This body of law is labeled the lex humana, which he believes is independent of, but has the capacity to be

12 Gunther Teubner, Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 6 (2003); Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory? in Christian Joerges, Inger-johanne Sand, Gunther Teubner ed., Transnational Governance and Constitutionalism 8 (2004); see also Math Noortmann, Enforcing International Law: From Self-help to Self-contained Regimes (2005).

13 Niklas Luhmann, Das Recht der Gesellschaft 582ff. (1993).14 Teubner, supra note 12 at 3–4.15 Id. 2.16 Id. 25–26.17 Individual rights are the defining feature of normative constitutionalism, in particular.18 Andreas Fischer-Lescano, Die Emergenz der Globalverfassung, 63 ZaöRV 738 (2003).

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part of, the ius gentium.20 In contrast to Teubner, Fischer-Lescano is much more as-sertive about the aspect of rights orientation within global constitutionalist thought. Specific reference is made to fundamental norms of global constitutionalism (Funda-mentalwerte der Internationalen Gemeinschaft).21 Although Fisher-Lescano touches on many themes of global constitutionalism, his main focus is on civil society and its par-ticipation in order to limit the single locus of power.

In his book Eunomia, Philip Allott suggests a vision for a new global order. He does not endorse the view that such an order exists or is even in the process of coming into existence: indeed, he has claimed more recently that the constitutionalizing of inter-national society is “more improbable than ever.”22 Allott not only proposes a vision for the reform of the fundamental conceptions of international law, but he demands a change in the fundamental conceptions of international society at large. A global constitution is at the heart of this vision. In the first edition of Eunomia, Allott declared that his ambitious project has the purpose of proposing a “general theory of society and law which is potentially universal . . . a theory capable of being the theory acted upon by all participants in international society.”23 In his later book The Health of Nations, Allott provides a practical theory for the ideas from Eunomia.24 He maintains the idea of social international society in what he terms the development from the “social animal” to the “social species.”25

In Eunomia, Allott first described his vision of the constitution of a society as “the fruit of a society’s contemplation of itself in time and space.”26 Constitutionalism has three faces—a legal constitution, a real constitution, and an ideal constitution.27 Allott understands these three faces, the three constitutions, as being in a constant process of integration, as the result of ceaselessly changing perspectives of the consti-tution in question. In this sense, his vision of constitutionalism is very different from the other visions of constitutionalism that prefer to consider more rigid models (spe-cifically those emphasizing the systematization of international law). Such flexibility could be very welcome in order to prevent some of the limitations that may be implicit in the prevailing rigid theories of constitutionalism.28

19 Id. 760.20 Id. 750ff.21 Id. 745.22 Philip Allott, The Emerging International Aristocracy 35 New York University Journal of International Law

and Politics 336 (2003).23 Philip Allott, Eunomia: New Order for a New World (1990) preface xix.24 Philip Allott, The Health of Nations (2002) xi.25 Id. ix.26 Id. (9.1) 132.27 Id. (9.6-9.10); 134–136; Philip Allott, Reconstituting Humanity–New International Law, 3 European J. Int.

L. (EJIL) 225 (1992).28 See Schwöbel, supra note 3 at 538f.

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1.3. Summary

Central to this dimension of global constitutionalism are the concepts of participation, influence, and accountability. Participation is seen as the ultimate form of limiting absolute power and thus as a form of justifying power. The advocates of social consti-tutionalism believe a shift has occurred in terms of the legitimacy of international law, which has allowed for the formation of a comprehensive legal order of coexistence. Within this order social relations have emerged that must be protected and promoted; global constitutionalism is believed to provide a framework for this new international order. Participation as a means of limiting power is, of course, a central idea of democ-racy, specifically constitutional democracy. Three key themes of global constitution-alism have emerged so far are: (a) the limitation of power; (b) the systematization of law, and (c) individual rights. It has become apparent that the first of these three is the central preoccupation of scholars of social constitutionalism.

2. Institutional constitutionalismInstitutional Constitutionalism looks to where power is situated in the international sphere and seeks to institutionalize this power. Questions of institutionalization largely concern the accountability of decision makers. Power is not only thought to require limiting, but also allocating.

2.1. Global governance

Due to increased global cooperation regarding issues formerly under the exclusive competence of state governments, global networks of governance have emerged.29 “Governance” in the international sphere pertains to the exercise of authority in exclusion of an overarching governmental authority—in other words, governance without a world government.30

Anne Peters argues in favor of a network of constitutions that traverses both the national and the international legal orders. She declares that the state constitutions’ original claim to form a complete basic order is defeated and that state constitutions, therefore, are no longer “total constitutions.”31 Peters asserts that the international sphere includes some of the formal properties of constitutional law, that some constitu-tional functions are fulfilled, and that some universal values are identifiable.32 However, there are purported gaps that debar a complete and comprehensive constitutionalism.

29 Governance is mostly understood as the overall process of regulating and ordering issues of public interest.30 J. N. Rosenau, Governance, Order, and Change in World Politics in J. N. Rosenau, E. O. Czempiel ed., Governance

without Government 7 (1992).31 Anne Peters, Compensatory Constitutionalism: The Function and Potential of Fundamental International

Norms and Structures 19 LJIL 580 (2006).32 Anne Peters, Global Constitutionalism in a Nutshell in Liber amicorum Jost Delbrück, Weltinnenrecht 548

(2005).

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She argues, consequently, in favor of a compensatory constitutionalization on the international plane in the form of transnational democratic structures that make up a “constitutional network.”33 This perspective stands in contrast to views on global consti-tutionalism that emphasize an independent international constitutional order pertain-ing exclusively to public international law. Peters argues that the structure of a network of constitutionalism on the global level has come about as a result of globalization on the international level and deconstitutionalization on the domestic level.34 Peters believes that the influx of international legal obligations is leading to an insistence that states safeguard certain constitutional principles, precluding the possibility of their disappear-ance or being reduced to insignificance. This relationship between international and na-tional law is described as a “network” in contrast to a “hierarchy” of rules.35 By focusing on governance, Peters advances a democratic vision of global constitutionalism, which does not center on participation but, rather, on the positioning of power structures. While the limitation of power was the key theme identified in social constitutionalism, and certainly also plays a large role here, the related notion of the institutionalization of power is the predominant key theme in this context.

One of the first visionaries of a multilayered and multifaceted interplay between the national and the international sphere was, famously, Anne-Marie Slaughter in A New World Order.36 She described a web of links between what she termed “disaggregated” state institutions made up of government networks. By this she means that although states still exist in the new world order, they relate to each other not only through the foreign offices but also through regulatory, judicial, and legislative channels.37 Slaughter rejects the idea of a global constitution since she believes that such a constitution would require a formal global government.38 She therefore suggests an alternative; namely, an informal set of principles. Informal principles and norms should operate independently of formal codification, “even as the actors and activities they would regulate form and reform in shifting patterns of governance.”39 Such an informal vision appears to be on the same page as Allott’s flexible constitutionalism. Slaughter’s ideas have inspired many authors writing about global constitutionalism in international law. International law-yers have taken inspiration from the idea of a global network of governance and describe this in terms of global constitutionalism, albeit a formal type that, nevertheless, rejects the establishment of a global government.

Stefan Kadelbach and Thomas Kleinlein also argue in favor of a multilayered inter-national legal system. They base their proposal on the concept of general principles of law as set out in article 38 (1) (c) of the ICJ Statute.40 Three distinct categories of

33 Id. 537; Peters 2006, supra note 31, at 579–610, particularly 592.34 Peters 2005, supra note 32, at 536–537.35 Id. 542.36 Anne-Marie Slaughter, A New World Order (2004).37 Id. 5.38 Id. 245.39 Id.40 Stefan Kadelbach and Thomas Kleinlein, International Law–a Constitution for Mankind? An Attempt at a

Re-appraisal with an Analysis of Constitutional Principles, 50 German Yearbook of Intl. L. 337ff. (2007).

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general principles are set out: first, principles that are generally recognized provisions of domestic law; second, general principles originating in international relations; and third, general principles applicable to all kinds of legal relations.41 In this way, Kadelbach and Kleinlein introduce principles of national constitutional law into public international law and, at the same time, uphold established international consent. They attempt a “reconstruction of the constitutional approach to public international law as a theory of constitutional principles.”42 Such reconstruction, so they argue, must take place when there is a need to transfer principles of national constitutional law to international law. Where public international law is structur-ally equivalent to state constitutions but lacks adequate provisions of its own, there is a need for supplementing it with national constitutionalism (similar to Peter’s idea of compensatory constitutionalism).43 Universal respect for human rights, demo-cratic legitimacy or accountability, the rule of law, and the principle of respect for the environment are thought to be national constitutional principles that are also international general principles of international law and, therefore, qualify as inter-national constitutional norms.44

One of the most eminent contemporary scholars of political philosophy Jürgen Habermas speaks of a multilevel system of governance that is constituting a pol-itical constitution of a decentralized world society.45 In his book, The Divided West, Habermas dedicates a chapter to the question: “Does the Constitutionalization of International Law Still Have a Chance?”46 He declares that the goals of international relations are peace, international security, the promotion of human rights, and dem-ocracy throughout the world. The question for international lawyers is whether law has a role to play in achieving these goals. Habermas believes that it could go one of two ways: either international law is required, which would be the case if legal proce-dures in the framework of world organization were to prevail, or international law is not required, which would follow if the unilateral decision making of “a well-meaning hegemon” were to prevail.47 Habermas believes that a world organization of inter-national law could address the requirements and goals of international relations so long as it is understood in a multilayered form. He envisions a supranational level, with the capacity of ensuring functions pertaining to securing peace and promoting human rights, and a transnational level, which would concern itself with the prob-lems of global domestic politics (he suggests regional or continental regimes modeled on the European Union).48 He observes that the current “post-national constellation”

41 Id. 339.42 Id. 338.43 Id. 342.44 Stefan Kadelbach and Thomas Kleinlein, Überstaatliches Verfassungsrecht: Zur Konstitutionalisierung im

Völkerrecht, 44 Archiv des Völkerrechts 235, 254 (2006).45 Jürgen Habermas, The Divided West 116ff. (Ciaron Cronin tr., 2006).46 Id.47 Id. 116.48 Id. 136.

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of international affairs is supportive of the constitutionalization of public international law.49 In his view, the United Nations with the Charter as its core, are achievements on the arduous way to a political constitution of world society and would play a sig-nificant role at the supranational level.50 Visions of global constitutionalism that are based largely or entirely on viewing the UN Charter as “the global constitution” will be discussed below in more detail.

Miguel Poiares Maduro also argues in favor of a constitutional approach to global governance, placing particular emphasis on the question of legitimacy.51 Like the authors already mentioned, he, too, claims that global constitutionalism has not made national constitutions redundant but, rather, that there are different instances of applicability.52 Maduro stresses the need to legitimize de facto power in constitu-tional terms.53 He shows that the form and locus of power have changed from what was traditionally a state monopoly. Traditionally, the form of power—the constitu-tion of a nation-state—and power itself coincided in the same locus, the state. Global governance, however, has caused a shift of power to global sites. Moreover, the form of power, that is, the mechanisms that determine the exercise of such power, have also changed.54 Crucially, in some instances such power can no longer be traced back and legitimated through the state constitution.55 Thus, reasons Maduro, since states cannot constitutionally control global governance, there must be a structure that can—in this case, global constitutionalism.56

Although emerging mostly from the field of international relations, cosmopolitan visions of global constitutionalism can also be regarded as a branch of international legal contributions, not least because of the latter’s strong influence on the debate. The ideal in the cosmopolitan view is that of a cosmopolis created through a global civil so-ciety. Emphasis is placed on the establishment of a global political community, which is constituted of and by a society of free and equal individuals (global democracy). Within the public international law terminology, cosmopolitanism can be described as political constitutionalism. Cosmopolitan constitutionalism is closely related to the aforementioned global governance idea of global constitutionalism in that it envisions democratic processes on an international scale. Although the lines are often blurry, global governance could be distinguished from cosmopolitanism in that the latter seeks to achieve a comprehensive global order, while the former is more sectional. Cosmopolitan constitutionalism assumes “that an essential core of the concept of democracy can be disembedded from the notion and institutions of the constitutional

49 Id. 115.50 Id. 136, 173ff.51 M. Poiares Maduro, From Constitutions to Constitutionalism: A Constitutional Approach for Global Govern-

ance in Douglas Lewis ed., Global Governance and the Quest for Justice vol. I 227ff. (2006).52 Id. 251–252.53 Id. particularly 251.54 Id. 229.55 Id.56 Id. 233.

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nation state and re-planted within transnational governance systems. . . .”57 Accord-ing to the political theorist David Held, the “cosmopolitan model of democracy” is a necessary instrument to ensure the accountability of the related and interconnected power systems of the world. Held describes these power systems as a series of overlap-ping local, regional, and global processes.58 For him, as well as for the international lawyers mentioned above, constitutionalism is an instrument for institutionalizing democratic procedures in the international sphere in order to obtain accountability for the power processes. In other words, constitutionalism is designated as a means of achieving worldwide democracy.

Another form of global governance in international law, which concerns regula-tion and administration specifically, is found in the area of global administrative law. Global administrative law proponents regard the blurring of the domestic and the international, the performance of administrative functions by all manner of officials and institutions at different levels, and the general increase in the public power of the administrative realm as a “growing trend towards administrative-law type mecha-nisms” on the global scale.59

Nico Krisch and Benedict Kingsbury are among the most eminent scholars of inter-national law doing research in this area. Krisch and Kingsbury assert that there are many and various forms and institutions exercising administrative and regulatory functions. These are distinctly administrative in that they concern “the setting and application of rules by bodies that are not legislative or primarily adjudicative in char-acter.”60 Krisch and Kingsbury consider constitutional forms only on the domestic scale and, generally, reject the constitutionalization of power structures.61 Recalling the above claim that all contributions that regard themselves as part of the “global constitutional” debate and all visions that contain “universalism” and “constitution-alism” qualify as such, it should be noted that the concept of global administrative law is, prima facie, a distinct debate. However, the impetus for the growing interest in global administrative law and global constitutionalism is rooted in analogous ideas regarding the changes in international law and the international sphere in gen-eral. Both global constitutionalism and global administrative law attempt to explain the shifting power and legal structures that have accompanied the growth in inter-national decision-making bodies.62 Furthermore, they both try to address concerns of

57 Claire Methven O’Brian, Reframing Deliberative Cosmopolitanism: Perspectives of Transnationalisation and Post-national Democracy from Labour Law–Part I/II, 9 German L. J. 1008 (2008).

58 David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance 267ff. (1995).

59 Nico Krisch and Benedikt Kingsbury, Introduction: Global Governance and Global Administrative Law in the International Legal Order, 17 EJIL 1, 2 (2006).

60 Id. 3.61 Krisch states: “In the circumstances of global governance, attempts at ‘constitutionalizing’ the political

order by forcing it into a coherent, unified framework are problematic as they tend to downplay the ex-tent of legitimate diversity in the global polity.” Nico Krisch, The Pluralism of Global Administrative Law, 17 EJIL 248 (2006).

62 Krisch, Kingsbury, supra note 59; Krisch, supra note 61.

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legitimacy and participation that have occurred through such a shift. It will be inter-esting to observe whether the debates continue to be distinct or whether they will merge in the future.

2.2. The United Nations Charter

Institutional constitutionalism can also refer to a single institution and its institu-tional law. The first and foremost such international organization is the UN and its foundational treaty, the UN Charter. The assertion that the UN Charter is the global constitution is one that has been the object of much academic thought and has been an inspiration for many publications. Ronald St. John Macdonald and Bardo Fass-bender are among the most assertive proponents of granting the UN Charter the label “global constitution.” Macdonald claims, boldly, that “[i]t is apparent . . . that the material content of the Charter of United Nations is indeed constitutional and that we are fully justified in treating the Charter as the constitution of the international community.”63

The constitutional character of the UN Charter is described in various ways. The writers that advocate the global constitutional nature of the UN Charter commonly refer to a distinction between the formal (or institutional) and the material (or sub-stantive) element of a constitution.64 It is stated that institutional administration, that is, the establishment of the organs of the UN, not only indicates the constitutional character of the Charter for the organization as a whole, but likewise for the world at large. Macdonald expresses the view that the provisions establishing the organs (the General Assembly, Security Council, and others set forth in chapter 3 of the UN Charter) are a functional reflection of the formal constitutional authority by which power is delegated from the people to their respective government representatives.65 According to Fassbender, the Charter fulfills the requirement of governance through the express provisions relating to legislation, application of law, and adjudication.66 The alleged requirement of these formal requirements accentuates these authors’ preoccupation with the institutionalization of power, relying exclusively on a public/private distinction that places discourse regarding power in a public sphere.

63 Ronald St. John Macdonald, The International Community as a Legal Community in Ronald St. John Macdonald and Donald M. Johnston ed., Towards World Constitutionalism–Issues in the Legal Ordering of the World Community 879 (2005).

64 See particularly Pierre-Marie Dupuy, The Constitutional Dimension of the Charter of the United Nations Revisited, 1 Max Planck Yearbook of United Nations Law 3 (1997). Constitutional law in a formal and material (formell and materiell) sense is legal terminology often found in German constitutional law. Constitutional norms in a formal (formell) sense are norms that have been given a constitutional charac-ter through a specific democratic process. The written constitution is the typical constitutional law in a formal sense. Constitutional law in a material (materiell) sense refers to the substantive law, meaning the specific contents of the norms that give them constitutional character.

65 Macdonald, supra note 63 at 863.66 E.g. Fassbender 1998, supra note 5 at 574.

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Besides the assertion regarding the institutional or formal constitutional aspects of the UN, certain substantive elements are said to embody constitutional features too. The chief substantive principles are the maintenance of peace and security as set out in article 1 (1) UN Charter; the prohibition of the use of force laid down in article 2 (4) UN Charter; the peaceful settlement of disputes (articles 1[1], 2 [3] and 33); the prin-ciple of equal rights and the self-determination of peoples (article 1 [2]); the principle of cooperation (article 1 [3]); the promotion of respect for human rights and funda-mental freedoms without any form of discrimination (article 1 [3]); and respect for the sovereign equality of all its members (article 2 [1]).67 Additionally, it is observed that this supremacy in content is secured through a formal supremacy of the norms, which is attributed to article 103 of the UN Charter. Macdonald accordingly pronounces art-icle 103 of the UN Charter to be “one of the most persuasive arguments in favour of the view that the Charter is in fact a constitution.”68 A number of other features are suggested as endowing the UN Charter with a global constitutional character. These include ideas of universality, consent, and the necessities of today’s world. Habermas refers to the inclusiveness of the United Nations and the universality of UN law as one of the three “normative innovations” that make it possible to interpret the Charter as a global constitution. The other two are the explicit links between the goal of achieving peace by means of the politics of human rights and between the prohibition against using force and the threat of criminal action and sanctions.69 Fassbender emphasizes that the designation of the UN Charter as the global constitution would provide for clarity “to get out of the fog of the indistinct constitutional rhetoric.”70

2.3. Microconstitutionalism becoming macroconstitutionalism

The constitutionalization of international organizations is commonly a debate lim-ited to the specific organization and the respective specialized area, in which case it is, prima facie, not part of the debate on global constitutionalism. This form of con-stitutionalism has been referred to as “microconstitutionalism” vis-à-vis “macro-constitutional,” or global constitutionalism.71 Proposals for constitutionalism within organizations are proliferating as international organizations achieve greater influ-ence on the international plane and as their decisions increasingly impact on domestic legal orders. Such specialized constitutionalism does not necessarily have to be cou-pled with the establishment of a specific institution, as may be seen in debates regard-ing environmental constitutionalism, for example. Environmental constitutionalism is specialized in terms of its subject matter (meaning it would qualify, possibly, as

67 Dupuy, supra note 64 at 3.68 Macdonald, supra note 63 at 862.69 Habermas, supra note 45 at 160ff.70 Fassbender 2005, supra note 5 at 848.71 See e.g., Anne Peters, The Merits of Global Constitutionalism, 16 Indiana J. of Global Legal Studies 408

(2009).

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microconstitutionalism), though it is global in terms of its ambit—the environment as a whole (suggesting that it would qualify as “macroconstitutionalism,” in this re-spect).72 Since such visions are not visions of global constitutionalism—global con-stitutionalism tries to encompass more general ideas on the regulation of society as a whole—they are mentioned only briefly here.

The founding treaties of specialized institutions are often also entitled “constitu-tions,” testifying to the feasibility of their being considered as reference documents for a specialized legal order. Such ideas concerning specialized constitutionalist visions sometimes feed into a global vision of constitutionalism as a multilayered and multifa-ceted system, such as we saw in the ideas on governance previously discussed—ideas that try to take fragmentation trends into account. This view suggests the recognition that a number of fragmented and specialized subsystems of international law exist and a corresponding “constitution” for each such subsystem could exist. The collection of such specialized constitutions is thought to form a separate constitutional order in the international sphere.73

Another form of microconstitutionalism becoming macroconstitutionalism involves the idea that specialized constitutional functions extend beyond the specific institution and the particular area of law that it regulates. Part of the parlance of global constitutionalism is, for example, the reference to “a constitutional economic order.” This refers, generally, to the law pertaining to the World Trade Organization (WTO). The idea that WTO law has a constitutional or constitutionalizing character is subject to extensive debates.74 What is more, some scholars claim that this constitu-tional order of the WTO has a radiating effect into the international sphere and into international law in particular. Ernst-Ulrich Petersmann explains that, since WTO law “protects freedom and non-discrimination across frontiers . . . [and] promotes rule of law more effectively than any other worldwide treaty system,” it already serves a global constitutional function.75 He notes that constitutional functions are addition-ally served through the fact that the WTO agreement asserts legal supremacy and provides a legal framework for the periodic negotiation of new WTO Agreements.76 In his opinion, this constitutional function should be supplemented with human rights as additional constitutional safeguards.77

72 See Daniel M. Bodansky, Is there an International Environmental Constitution? 16 Indiana Journal of Global Legal Studies, 565ff. (2009). Bodansky, although coming to the conclusion that there is no environmental constitution per se, claims that environmental treaty regimes have a constitutional dimension in that they establish ongoing systems of governance. (Id. 574f.)

73 See e.g., Peters 2005, supra note 31 at 538.74 See e.g., Jeffrey L. Dunoff, Constitutional Conceits: The WTO’s “Constitution” and the Discipline of International

Law 17 EJIL 647–675 (2006); Deborah Z. Cass, The Constitutionalization of the World Trade Organization (2005).

75 Ernst-Ulrich Petersmann, The WTO Constitution and Human Rights, 3 J. of Intl. Economic L. 20 (2000).76 Id. 20.77 Id. 21.

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2.4. Summary

The main concerns of those advocating institutional constitutionalism raise questions of the limitation and accountability of power through participation and representa-tion and the significance of legitimacy with respect to these. The theme of the limita-tion of power is featured strongly, and particularly the institutionalization of power as a means to ensure such limitation. The aforementioned authors all view these con-cerns in the context of democratic systems and, therefore, adhere to a vision of global constitutionalism in a democratic order.

3. Normative constitutionalismSome authors of international law identify specific norms as possessing a global constitutional character. Distinct from institutional constitutionalism, the legitimacy of these norms is derived from their inherent moral value for society rather than their procedural value in the allocation of power. While the central themes of the limita-tion and institutionalization of power, as well as the systematization of law, have been discussed already, normative constitutionalism introduces the key themes of idealism and pays particular attention to individual rights.

3.1. World law

Global constitutionalism as a framework for world law is a holistic vision that encom-passes a universal legal and political order. It is concerned with questions of both participation and fundamental rights. With reference to the cosmopolitan theories of Kant, Angelika Emmerich-Fritsche makes her case for a world law concept. In her view, world law comprises global contracts, treaties, and universal international law.78 What she describes as the currently imperfect, fragmentary constitutions of the global order, such as the constitution of the European Union or the Charter of the United Nations, can be amalgamated in such a way as to embody a global constitution:

There are possibilities to complete the fragmented global constitution, in particular to dem-ocratize it, to implement the rule of law (especially legal protection) and to connect the con-stitutions of ILO [International Labor Organization] and WTO in form and/or content. The partially imbalanced processes of constitutionalisation can be unified within the framework of the United Nations to a coherent constitution of the world.79

Significantly, Emmerich-Fritsche makes a distinction between world law and inter-national law: world law is defined by its higher level of legally binding provisions, which have emerged through the processes of institutionalization and constitution-alization. International law can achieve the rank of world law if it loses its former

78 Angelika Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht, “Short-Summary” 1072–1073 (2007).79 Id. 1073.

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features of interstate law and, instead, takes on the traits of world law.80 Emmerich-Fritsche echoes the thoughts of Jost Delbrück who speaks of world (internal) law, Weltinnenrecht.81 They both claim that international law should be referred to as world law when it has reached this transcending stage.82 Since globalization entails a paradigm shift for international law, globalization could not only signify an end of the nation-state but also an end of international law itself.83

Emmerich-Fritsche is also concerned with the limitation and institutionalization of power; her view is very much directed to specific norms, particularly rights. These norms are believed to be a form of higher law due to their morally binding properties. At the center of her attention is the liberal notion of individual autonomy and impli-cated, though peripheral to that, is the democratic vision of participation of subjects.

3.2. The hierarchical order

In a similar vein, Brun-Otto Bryde claims that it is the hierarchy of the norms of public international law that determines the existence of a constitutional order of inter-national law.84 Bryde explains that in international law, states and international organizations adopt the role of the “lawmaker,” and these lawmakers are bound by a set of higher norms—a process that is to be understood as global constitutionalism.85 Bryde, like many German scholars of constitutionalism, emphasizes the distinction between the procedural constitutional rules of lawmaking and adjudication, on the one hand, and substantive constitutional principles, on the other.86 He contrasts the Westphalian model of international law—in his words, a “well-ordered anarchy of States”—with the constitutionalist system of international law. He defines the consti-tutionalist system as

not horizontal but verticalised. It recognises a source of legitimacy that is higher than the in-dividual states, a hierarchy of norms in which ordinary legal rules have to be reviewed against constitutional principles, and it employs constitutionalist methods of interpretation.87

Bryde emphasizes that at the core of constitutional international law lies the uni-versal acceptance of a common interest of mankind.88 All states have agreed to submit

80 Id. 1072.81 Jost Delbrück, Wirksameres Völkerrecht oder neues “Weltinnenrecht”? Perspektiven der Völkerrechtsentweick-

lung in einem sich wandelnden internationalen System in Klaus Dicke et al ed., Die Konstitution des Friedens als Rechtsordnung (1996); Jost Delbrück, Perspektiven für ein “Weltinnenrecht”? in Gedächtnisschrift für Jürgen Sonnenschein 793 (2003).

82 Emmerich-Fritsche, supra note 78 at 192; Delbrück 1996, supra note 81 at 346f.83 Emmerich-Fritsche, id., at 193.84 Brun-Otto Bryde, Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts, 42

Der Staat 61f. (2003); Brun-Otto Bryde, International Democratic Constitutionalism, in Ronald St. John Macdonald and Donald M. Johnston ed., Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 104ff. (2005).

85 Bryde 2005, supra note 84.86 Id. 104.87 Id.88 Id. 107.

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to the supremacy of these common interests (such as environmental protection or human rights law). The verticalization of international law is described as having taken place in a normative sense through the “higher law” norms, such as jus cogens, which protect the common interest of mankind against violation.89 The use of such terminology is common in modern constitutionalist jargon and is identified, here, as belonging to the key theme of social idealism. Social idealism pertains to visions that paint an idealistic vision of the future based on certain societal values thought to be the common ground or the lowest common denominator of society. While some of the weaknesses of constitutionalization is identified in the incomplete institutional consti-tutionalization of international law, Bryde believes that institutions still must follow the normative and conceptual lead. Accordingly, a regressive adjustment is no longer possible—“development” is inevitable.90 Bryde also advocates the necessity of the cre-ation of an international democratic civil society (a development already embarked on) and, consequently, a “transnational democratic organisation.” The requirement of legitimacy is, once again, evoked in this context.91

Although he does not explicitly refer to the term “hierarchy of norms,” Luigi Ferrajoli, nevertheless, describes it in his illustration of the normative effects of the UN Charter and the Universal Declaration of the Rights of Man of 1948.92 He argues that from the moment of the signatory states’ submission to the fundamental norms “sov-ereignty became a logically inconsistent concept.”93 Ferrajoli invites his readers to “take seriously” the existing international legal framework. This means recognizing the global constitution in embryo that already exists in the UN Charter and in the various international conventions and declarations of human rights.94 Although still lacking any institutional guarantees, he believes that global constitutionalism has al-ready been established, formally, through such norms.95

Ferrajoli also draws attention to the paradigm shift that has taken place in inter-national law, explaining that international law has been transformed from a con-tractual system, in which sovereignty (in its external dimension) was the paradigm, to “a true legal order of a supra-State kind.”96 He not only refers to de facto formal global constitutionalism but also to the requirement of constitutionalism as a method of making supranational agencies accountable for their decision making.97 This can be understood as an appeal to the institutional guarantee of global constitutionalism. The agencies that have caused a shift in decision making away from nation-states

89 Id. 108.90 Id. 110.91 Id. 115ff.92 Luigi Ferrajoli, Beyond Sovereignty and Citizenship: a Global Constitutionalism, in Richard Bellamy ed.,

Constitutionalism, Democracy and Sovereignty: American and European Perspectives 154 (1997).93 Id. 154.94 Id. 155.95 Id.96 Id. 154.97 Id. 157.

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(and to themselves) need to be controlled through constitutional guarantees of peace and human rights. He demands their political accountability.98 The essential theme of idealism is central to normative constitutionalism in that it encapsulates the promise of a future good society. In his essay Beyond Sovereignty and Citizenship: A Global Constitutionalism, Ferrajoli finally takes the idealistic theme of global constitutionalism to the maximum:

[T]he legal project at the basis of global constitutionalism is, in the long term, the only real-istic alternative to war, destruction, the rise of a variety of fundamentalisms, ethnic conflicts, terrorism, an increase in famines and general misery.99

This quote, in fact, sums up normative constitutionalism nicely. While democratic features are believed to be significant, it is the value-oriented aspect of constitutional-ism that is at the heart of this dimension.

3.3. Fundamental norms

A further variant of normative constitutionalism, closely related to the former, is the idea that there exist certain fundamental norms, which incorporate the most central values of international society and, therefore, constitute a framework for the rest of international (and domestic) law. In their entirety, the norms are then referred to as the global constitution. These norms are thought to have an objective existence, al-though their source is neither in norms of international organizations nor in other bilateral or multilateral state agreements. The label “fundamental norms” is meant to signify that they apply to all members of the international community, irrespective of sovereignty or, for that matter, consent. Fundamental norms are mostly norms con-sidered as setting basic or minimum standards or morals and, therefore, can often be traced back to the humanitarian impulses of the nineteenth century, where the indi-vidual became the central focus of thought.

Two examples of fundamental norms are jus cogens and norms applying erga omnes. Jus cogens norms, found in article 53, 64 Vienna Convention on the Law of Treaties, are often described as constitutional norms of the international order. Advocates of the international community school, such as Christian Tomuschat as well as advocates of other visions of constitutionalism, often refer to these norms, if not as constituting the global constitution themselves then at least as constituting a part of the global consti-tution. According to Michael Byers, the constitutional character of jus cogens norms is, indeed, “obvious.” Byers believes that nowhere else in the international legal system is the ability of certain rules to limit a state’s ability to develop, maintain, or change norms so clear.100 Such capability is, for him, indicative of their constitutional character. Erika

98 Id.99 Id. 159.100 Michael Byers, Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules 66 Nordic J. Intl.

L. 220 (1997).

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de Wet also advocates a constitutional order composed of fundamental norms with jus cogens norms as its apex. In contrast to Byers, she attributes to them a constitutional character on the basis of their value, not on the basis of their effect.101 Thus, de Wet is according jus cogens norms with content—a content that justifies their effect. Emphasis is placed on human rights as the common value in the international society.102 Accord-ing to her, the international value system is constituted by means of norms with a strong ethical underpinning that have acquired a special hierarchical standing through state practices.103 International values are a layering of universal jus cogens norms and erga omnes obligations.104

Jost Delbrück argues that erga omnes norms could exist alongside jus cogens norms to constitute a category of norms in their own right. He believes they are a new element in the hierarchy of international law and attest, thereby, to the ongoing process of inter-national law’s constitutionalization.105 The category of erga omnes norms articulates the basic interests and needs as well as the fundamental values of the international community as a whole; in short, they refer to the public interest.106 Geir Ulfstein pro-poses an institutional slant on the aforementioned ideas concerning fundamental rights by suggesting the establishment of a world court of human rights.107 Ulfstein envisions that the intention of such a court would be to empower an international ju-dicial organ that ensures respect for “core values in the international community.”108 Such an institution could be regarded as a “facet” of the constitutionalization of inter-national law.109 Although some jus cogens and erga omnes norms can be associated with questions of participation, the main focus of the authors, in determining the con-tent of these norms, is on individual rights, specifically human rights. Thus, the pol-itical aspect of normative constitutionalism is mostly concerned with the institution and restriction of political power for the purpose of protecting individual rights.

3.4. Summary

In sum, the approaches to global constitutionalism from a normative perspective center both on the protection of the rights-oriented dimensions of constitutionalism as well as on social idealism. All the proponents of normative constitutionalism maintain

101 Erika de Wet, The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order 19 LJIL 611–632 (2006).

102 Id. 613.103 Id. 613–614.104 Id. 614.105 Jost Delbrück, Laws in the Public Interest–Some Observations on the Foundations and Identification of erga

omnes Norms in International Law in Volkmar GÖtz et al. ed., Liber amicorum Günther Jaenicke–zum 85. Geburtstag 17–36 (particularly 35) (1999).

106 Id. 18.107 Geir Ulfstein, Do We Need a World Court of Human Rights? in O. Engdahl and P. Wrange ed., Law at War: The

Law as it Was and the Law as it Should Be (2008).108 Id. 271.109 Id.

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that an international legal order exists, framed by certain superior (constitutional) norms. International law is seen as having moved away from its preoccupation with state interest and state will toward a relativity of rights and duties.110 This shift is often said to be due to a paradigm shift in international law.111 Public international law is believed to have changed from a consensual quasi-contractual law to a law that is determined, in large part, through compelling global values. Various values come to the fore in the previous descriptions of global constitutionalism, depending on the focus of each author. To a great extent, the values are individual interests linked, inextricably, to a liberal conception of autonomy and mostly translated into the human rights language. The terminology used to describe the normative aspect of global constitutionalism, in the sense of a universal value system for a better future (social idealism), is commonly along the lines of “public interest norms,” “fundamental norms,” or “international community norms.”

4. Analogical constitutionalismThe final dimension of global constitutionalism draws analogies between features of the international sphere and features of domestic and regional constitutional orders. Scholars contributing to this dimension of global constitutionalism identify constitu-tional principles of particular legal orders (mostly of their own national or regional legal orders) and find parallel principles in the international sphere.

4.1. Meta-rules constitutionalism

A popular, and possibly one of the oldest versions of global constitutionalism in public international law, is the idea that meta-rules embody the constitutional principles of the international sphere. In 1926, Alfred Verdross published a book with the ambi-tious title The Constitution of the International Legal Community.112 Verdross described the community as constituted through “those norms which deal with the structure and subdivision of, and the distribution of spheres of jurisdiction in, a community.”113 Verdross is best known for his work on general principles as a source of international law,114 and it is in this vein that he refers to a presupposed legal validity of positive norms (based on consent).115 Verdross’s definition of the constitution of the inter-national community was not only pioneering in terms of the identification of a unity

110 Emmerich-Fritsche, supra note 78 at 703.111 Ernst-Ulrich Petersmann, Europäisches und weltweites Integrations-, und Verfassungs- und Weltbürgerrecht

in: Liber amicorum Thomas Oppermann 367f .(2001).112 Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft (1926).113 Id. v.114 See Bruno Simma, The Contribution of Alfred Verdross to the Theory of International Law, 6 EJIL 1–54

(1995).115 Alfred Verdross, Völkerrecht 22 (1964).

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in the international sphere but the nature of the meta-rules in question was also revolutionary. Verdross’s study was published at a time when the sovereignty of states was still the quintessence of public international law; his description of constitutional norms, however, referred to basic nonconsensual rules.

In his lectures in The Hague, Christian Tomuschat echoed this over seventy years later by explaining that such a framework of basic rules applies to states “with or without their will [to constitute] the constitution of the international community.”116 Both Verdross and Tomuschat have since departed from their original visions of global constitutionalism, adapting them to their respective zeitgeist. In 1976, Verdross and his coauthor Bruno Simma published a new edition of Verdross’s original treatise. In the book, now titled Universal International Law: Theory and Practice, Verdross claims that constitutional law of the universal community is today embedded in the UN Charter.117 Tomuschat’s idea of constitutionalism has developed into a value-oriented notion. In 1999, Tomuschat asserted that protection is afforded by the international community to certain basic values.118 Meta-rules constitutionalism, for the most part, is not concerned with substantive rules in the sense of basic legal values. Rather, meta-rules constitutionalism regards the more formal/procedural aspect of constitu-tionalism, which is still incorporated in most visions of global constitutionalism, but is believed to derive from the respective substantive norms (as is the case for hierarch-ical visions of normative constitutionalism). Meta-rules constitutionalism is predom-inantly concerned with the development of society according to a fixed plan or system, identified above as the theme of the systematization or standardization or law.

4.2. The domestic constitutional order

Robert Uerpmann discusses global constitutionalism in international law with the help of analogies to national constitutional systems, in particular his own German constitutional system. While he dismisses the existence of an inclusive global con-stitution, as of yet, he does identify certain constitutional elements in public inter-national law based on his assumptions about constitutionalism.119

First, he claims that a constitution must constitute at least one main subject or organ.120 He finds that the UN is, despite its weaknesses, one of the main subjects of international law. Second, he asserts that international constitutional law must pro-vide for certain procedural rules.121 Despite the lack of a centralized legislature in the

116 Christian Tomuschat, Obligations Arising for States Without or Against Their Will, 241 Recueil des Cours de l’Académie de Droit International 216 (1993).

117 Alfred Verdross, Bruno Simma, Universelles Völkerrecht: Theorie und Praxis 69f. (1984).118 Tomuschat 1999, supra note 6. Emphasis added.119 Robert Uerpmann, Internationales Verfassungsrecht 56 Juristen Zeitung 565–572 (2001).120 Id. 566.121 Id. 565, 567.

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international community, international law has specific rules on legislation as a con-sequence of its doctrines regarding the sources of international law. Moving from the requirement for a legislative branch, Uerpmann goes on to discuss the need for an executive branch. While examining the lack of such an executive authority in inter-national law, he finds that there is, in fact, no requirement for such an authority in the international sphere. According to him, international law is a law of coord-ination rather than subordination, drawing the comparison to civil law, where the parties to a contract agree on their own methods of dispute settlement.122 As for the judicial branch, Uerpmann discusses the International Court of Justice and its lack of obligatory jurisdiction.123 Human rights norms and international economic rules are believed to be constitutional norms in a material sense; they specify which rights individuals have vis-à-vis states and are, therefore, in terms of their content, worthy of being constitutional—Verfassungswürdig.124

To complete this doctrinal analysis, Uerpmann discusses, whether a requirement for the existence of constitutional norms in a formal sense (law that is superior to other laws) can be satisfied. In this context, he raises jus cogens norms and norms applying erga omnes.125 It may be said that all contributors to global constitutionalism use an analogical methodology for global constitutionalism; Uerpmann is particularly rigorous in his approach, identifying first what is required of a constitution and then interpreting features of the international sphere in light of this requirement.

4.3. European constitutionalism

A brief reference should also be made to the constitutional trends in Europe. In many respects, Europe can be considered as a forerunner when it comes to a constitutional-ism that transcends a single nation-state. The status of the European Court of Human Rights as a constitutional court (meaning the constitutionality of the European Con-vention on Human Rights and Fundamental Freedoms) has been advanced by the former presidents of the Court Luzius Wildhaber and Rolv Ryssdall, as well as by the former registrar Paul Mahoney.126 Much scholarly and political attention has also been dedicated to constitutional debates of the EU in its political and legal aspects. Many of the previously mentioned scholars regard the EU as a model or prototype for international law, including Habermas, MacDonald and Petersmann.127 Matthias Kumm, for example, examines the extent to which international law can be awarded

122 Id. 568.123 Id. 569.124 Id. 569–571.125 Id. 571.126 Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects 169 f (2006),

referencing inter alia Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights? 23 H. R. L. J. 161(2002); Evert A. Alkema, The European Convention as a Constitution and its Court as a Constitutional Court in P. Mahoney, F. Matscher, H. Petzold and others ed,, Protecting Human Rights: The European Perspective – Studies in Memory of Rolv Ryssdall 41–63 (2000).

127 Habermas, supra note 45 at 136; Macdonald, supra note 63 at 853ff.; Petersmann 2001, supra note 111.

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with legitimacy from a constitutional perspective by making analogies between international law and EU law.128 He suggests a constitutionalist framework for inter-national law that draws on ideas of EU law. One such suggestion requires the inter-national legal principle of “sovereignty” to be understood as being replaced with the European legal principle of “subsidiarity.”129 Kumm asserts that subsidiarity was also used to guide the drafting of the European constitutional treaty.

The heads of state or government of the EU member states on October 29, 2004, signed the Draft Treaty Establishing a Constitution for Europe.130 The text of the con-stitution is based on certain elements: the inclusion of a Charter of Fundamental Rights, the attribution of powers (between the Union and the member states), the introduction of a mechanism to ensure respect for the principle of subsidiarity, and the inclusion of procedures which can facilitate citizens’ rights of legislative initiative.131 The treaty was set out to be approved and ratified in the form of referendums in some countries and parliamentary approval in others before its entry into force. However, the constitutional treaty of 2004 was rejected in two referendums, in France and the Netherlands; other EU member states abandoned their ratification processes as a re-sponse. After the failure of the constitutional treaty, the European Council decided on a reform treaty, known as the Lisbon Treaty, in its stead. This treaty, having been ratified in all member states, entered into force on December 1, 2009. Despite the re-jection of the formal constitutional treaty, the opinion has been voiced many times that the EU possesses a constitution in a material sense, regardless of whether it was ratified.132 While it has been difficult to realize fully the notion of an exclusive Euro-pean constitution (both politically and in legal theory), the model of a multilevel con-stitution in which powers are shared between the Union level and the nation-state level has become more popular.133 Kadelbach and Kleinlein even state: “The theory of multi-level constitutionalism resting on the assumption of shared competencies does not depend on the political success of the Constitutional Treaty.”134 A number of authors writing about public international law have adopted a similar idea of multi-level constitutionalism.135

4.4. Summary

The methodology of advocates of analogical constitutionalism is to find familiar pat-terns in domestic and regional legal systems and to extrapolate from them to the inter-

128 Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 EJIL 907 (2004).

129 Id. 921.130 European Convention Doc. 850/03; 18 July 2003.131 See, e.g., J. H. H. Weiler and M. Wind ed., European Constitutionalism Beyond the State (2003).132 For an overview over EU constitutionalism see Armin v. Bogdandy and Jürgen bast ed., Principles of European

Constitutional Law: Modern Studies in European Law (2005).133 Stefan Oeter, Federalism and Democracy in id. 53ff.134 Kadelbach, Kleinlein 2007, supra note 40 at 322.135 Peters 2005, supra note 32 at 541.

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national sphere. To understand the essential elements of constitutionalism that these scholars apply, one would do well to look at the domestic or regional constitutions with which they themselves are familiar. Notably, all of the authors mentioned in the category of analogical constitutionalism are European. Analogical constitutionalism makes a point of standardizing constitutional law; the authors look to a system that they believe works well and then use this as a guideline for the international sphere—this undertaking is described here as the key theme of the systematization of law.

ConclusionThe foregoing categorizations have revealed that global constitutionalism in an inter-national legal perspective is a complex and multidimensional debate. Despite this complexity, it has emerged that, in all dimensions, global constitutionalism takes its bearings from the same key themes and certain central ideas. The ordering of the de-bate has revealed that the predominant ideas of constitutionalism include the limita-tion of power (in the sense of restraining political power); the institutionalization of power (meaning the accountability of decision makers); social idealism (meaning an ideal for the future based on societal values); the systematization of law (which refers to the standard-setting capacity of constitutions); and the recognition of individual rights (most commonly in the form of human rights). While these five themes can be found in various combinations in the four dimensions of global constitutionalism, certain basic themes are emphasized more in one or another particular dimension:

1) Social constitutionalism emphasizes the key theme of a limitation of the single locus of power through participation;

2) Institutional constitutionalism emphasises the key themes of governance through the placing and location (that is, the institutionalization) of power;

3) Normative constitutionalism emphasizes a common value system through the protection of individual rights and social idealism;

4) And, finally, analogical constitutionalism views certain constitutional systems as blueprints for the international legal order and, therefore, emphasizes the system-atization of law.

The analysis of the types of global constitutionalism and the respective themes reveals certain patterns that help us place the dimensions in a political context. A more general categorization of the four dimensions of global constitutionalism that helps to situate the debate, from a political or ideological perspective, is to ascertain which primary stream of political theory they follow: social constitutionalism and in-stitutional constitutionalism focus on participation-oriented forms of constitutional models. The goal of participatory constitutionalism is achieved by means of demo-cratic processes. Normative constitutionalism and analogical constitutionalism, on the other hand, focus on rights-oriented forms of constitutional models, which center on individual autonomy (a legacy of the Enlightenment) and the entrenchment of

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such values. Although something of an oversimplification, this normative, value-oriented model could be dubbed a liberal model. These ideas are considered central tenets of the political form of government referred to as liberal democracy, which is predicated on the ideology of political liberalism. Liberalism, in this sense, is charac-terized by the two elements of formal autonomy and abstract equality; democracy is characterized by popular representation in the public sphere. It has become apparent that public international law contributions to the debate on global constitutionalism are animated by a belief that these liberal democratic ideas define not only constitu-tionalism in nation-states but also constitutionalism for the global order.

Such universalization prompts concerns regarding the possible limitations of the debate on global constitutionalism as it is today. First, does the extrapolation of liberal democratic themes point to the belief that this political practice is the only available form of political practice? Second, would the unquestioned investment in the liberal democratic political practice create or maintain a possible hegemony of certain powerful states? If so, could this lead to the universalization not only of a polit-ical practice but also of a predominant culture? Would there still be room for the rich diversity so characteristic of the international sphere? Would such universalization of a particular political practice create, in turn, a group of dissidents? Would this lead to a culture of disregard for the interests of minorities? Furthermore, would the unques-tioned universalization of the liberal democratic practice efface other features, such as fragmentation, that are also a part of contemporary international law?136 While these concerns do not point to necessary limitations, they do call attention to the pol-itical ideas that underlie the legal—and supposedly unbiased—features of constitu-tionalism. It is of paramount importance, therefore, that dominant political forms be questioned.

The events surrounding 9/11 have apparently caused a shift in international legal thinking. While in the 1990s there was much debate regarding diversity, recognition, and inclusion, the 9/11 attacks, arguably, have provoked something of a reorienta-tion toward a search for a global or common set of values and the concomitant ex-clusion of those who do not share these values. The Western countries, led by the United States, have engaged in a policy of identifying allies and enemies respectively in the fight against terrorism. This has been the source of the emergence of a clear and accepted divide between those who operate within the liberal democratic con-sensus and those who are wary of its possible hegemonic implications. Against this background, the feeling has crystallized that there is no need to question the premises on which liberal democracy is predicated. Hopefully, this article has heightened the awareness that certain prevailing ideas should not be applied globally—and, to that extent, universalized—without first questioning and then specifying the validity and generality of their premises, even if these ideas happen to be the central precepts of

the dominant political form.

136 Schwöbel, supra note 3 at 533–538.

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Situating the debate on global constitutionalism