Les Acteurs à l’Ère du Constitutionnalisme Global

Edouard Fromageau (chapter 1) critically examines the paradigm of global administrative law which complements (and maybe fleshes out to some extent) the more abstract principles of global constitutionalism. He concludes that global administrative law is useful “reading grid” to capture the emerging law which fills a new regulatory space that otherwise escapes traditional public international law. It is particularly useful to tie new actors to specific procedural requirements.

Lars Viellechner (chapter 2) sketches a model of “responsive legal pluralism”, which relies on conflict-of-law rules to resolve normative conflicts arising in globalized and multilevel governance. This model might be aligned to some form of constitutional pluralism, to the extent that it seeks to manage the tensions between universalism and particularism, between democracy and rule of law. Responsive legal pluralism thus presents itself as a via media between sovereigntism and monism, while avoiding particularism.

Claire Cuvelier’s chapter 3 examines one aspect of constitutional law beyond the state, namely the legal concept of demos. From a perspective of comparative constitutional law, she shows the coexistence of demoi on different levels of governance in several countries. Such a pluralist concept forms part of a multi-level constitutionalism and suggests overcoming the state-centered categories not only of the “people”, but also of the constitution.

Thomas Dubut (chapter 4) identifies an emerging corpus of international (or global) tax law transcending the nation states. He asks whether it is adequate to speak of a constitutionalization of tax law and of “fiscal constitutionalism”. However, these novel tax standards and laws are essentially created by groups of experts, and not all states take part in the standard setting processes. For this reason, Dubut deems it premature to qualify the phenomenon as a manifestation of global constitutionalization. In fact, the lack of democratic legitimacy, transparency and equal representation in the tax norm-making processes defies basic constitutionalist principles.

Anne-Marie Thévenot-Werner’s contribution (chapter 5) examines the right of access to an independent court or tribunal which staff members of international organizations should, from a constitutionalist perspective, enjoy. When staff members raise complaints against their employers, their fundamental (constitutional) right is normally limited by the immunity granted by international law to the organization. A meticulous analysis of the domestic and international case-law on the matter shows that the right of recourse to courts does not enjoy any normatively superior status to the traditional rule of immunity, and also varies from organization to organization. The chapter highlights this state of the law as a deficit with regard to respect for the rule of law, hence as a constitutional deficit.

Manuel Devers (chapter 6) departs from the insight that, in a globalized world, multinational companies have the potential to de facto violate international law including human rights and international humanitarian law. It is a basic aspiration of global constitutionalism to contain power, and to responsibilize powerful actors. Victims’ legal action to seek redress for violations of international law against economic actors might thus be considered as a kind of “constitutionalization from below”. Devers suggests to use the private international law technique of “taking into account” foreign (or in our case international) law. This would allow (domestic) courts − through the concept of fault under domestic civil law − to hold multinational enterprises responsible for violations of international law, despite those actors’ lack of formal international legal personality.

Draft chapters were discussed in a workshop “Sovereign Statehood in the Age of Globalism – Patterns and Processes of Global Constitutionalism”, for junior researchers held at the University of Basel from 23 to 25 October 2012 (as a part of the biennial colloquium of the French and German Societies of International Law).