Global Constitutionalism

Research in the field of global constitutionalism undertakes both positive and normative analysis. It, first, asks whether some features of the status quo of global law and governance can be plausibly reconstructed as “constitutional” and even “constitutionalist” (positive analysis), and seeks to identify, describe and explain such elements and trends. Second, the research assesses the quality of specific international legal phenomena from the viewpoint of their ability to respect and protect constitutionalist principles, and it sketches out and justifies new institutions, mechanisms, and principles which might contribute to realizing better the objectives of constitutionalism (normative analysis).

Key concepts

Global constitutionalism is a scholarly discourse which diagnoses and/or reclaims that the norms and institutions of global governance follow and respect principles of constitutionalism. These comprise the rule of law, separation of powers/checks and balances, protection of human rights, democracy, and solidarity. But when transposed to the international level, both the constitutionalist principles and their modes of implementation have been and must to some extent be modified.
“Constitutionalization” of (or rather: within) international law is the label for the evolution of an international order based on some organizing principles such as state sovereignty and consensualism to an international legal order which acknowledges and has creatively appropriated principles and values of constitutionalism as mentioned above. The agents of the (putative) process of constitutionalization are the international law-makers as political actors, courts, and also academics.
“Global” in this context is a signifier for three aspects: First, it denotes the geographical spread of the political-legal institution called constitution and of the agenda of constitutionalism. Second, it marks the resonance of this institution and agenda in international law. Third, constitutionalism may be duly called “global” only when it asks law-makers and governance-designers to take into account interests and needs of humans in different cultural and economic contexts all over the globe.
Global constitutionalism as a discourse necessarily refers to multiple levels of governance; it relates both to state constitutions and to international constitutional law. In the course of constitutionalization, processes of norm migration, cross-fertilization, harmonization, and hybridization occur in many directions, both “vertically” (among the levels of national law and international law) and “horizontally” (among national constitutions). 

Within international law, the scattered legal texts together with the case-law might form a body of international constitutional law which is a specific subset of the international legal order, and which has a particular normative status. This body is not united in one single document called world constitution. International constitutional law refers to international norms with a constitutional function. Thus understood, international constitutional law can be divided into three broad sub-categories: (1) fundamental norms which serve as a constitutional function for the international legal system at large, (2) norms which serve as constitutions of international organizations or regimes (sectorial constitutions), and (3) norms which have taken over or reinforce constitutional functions of domestic law. International (or global) constitutional law might be said to complement global administrative law.

Method

Three methodological maxims are especially important for any research on global constitutionalism. First, in order to identify elements of a constitutionalization within international law, our gaze must wander between two poles: On the one hand, the international legal material must be analysed “bottom-up” with the traditional doctrinal methods. On the other hand, this examination must be conducted through the novel lens or prism of constitutionalism which allows us to describe, interpret, and re-structure the legal phenomena in a novel way and therefore to understand and explain them better (without falsifying them).
Second, scholars of global constitutionalism should mark where they make an evaluation (by relying on constitutionalist principles), and signal what is, according to their analysis, the lex lata, and what they request de lege ferenda.
Third, while the normative analysis can be distinguished from a positive analysis in an ideal-typical fashion, there is a blurry intermediate zone in reality. One reason is that “description” is, in itself, already a constructive and systematic performance, which is based on numerous distinctions and choices. Another reason for the blurriness between positive and normative analysis are specific features of international law, namely its typical indeterminacy resulting from the relative vagueness of many treaty provisions and the high amount of unwritten norms.
For these reasons, neither the canons of construction for treaty interpretation nor empirical research on the formation of customary law will in themselves yield clear results, for example on the degree of the constitutionalization of international adjudication or any other putative constitutional element within international law. The findings must be complemented by normative considerations in form of an evaluative systematization and evaluating closure of legal gaps.

Takao Suami (Waseda University Law School) and Dimitri Vanoverbeke (Katholieke Universiteit Leuven): “Global Constitutionalism and East Asia”. This research project is part of a broader project titled “The EU-Japan Relationship in the Context of an On-going Power-shift in the Global Society”. The parent project is a five-year research program funded by the Japan Society for the Promotion of Science, which formally began in April 2011.
First Workshop on “How should we approach Global Constitutionalism?”, 21 and 22 February 2014 at the K.U. Leuven in the city of Leuven (Belgium), jointly organized by Waseda University, the Leuven Center for Global Governance Studies and the Research Section of Japanese Studies at the KU Leuven.