Against a Deconstitutionalisation of International Law in Times of Populism, Pandemic, and War
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In the context of a power shift away f rom the Western world, disenchantment with globalisation, and the rise of postcolonialist and posthumanist thinking, global constitutionalism is under pressure. The factual acceptance and normative appeal of the constitutionalist ‘trinity’ of the rule of law, human rights, and democracy needs to be re-examined. Erosions and attacks concern all three principles, and also institutions that embody them such as the International Criminal Court and the regional human rights courts. However, constitutional fragments in the international legal order (in its interplay with domestic law) appear to be resilient, in the context of ongoing, though slowed-down globalisation. We perceive islands of constitutionalism and an ongoing constitutionalisation in international law such as the recent reform of the working methods of Security Council in the direction of transparency (with an obligation to give reasons for the exercise of the veto). The paper argues that global constitutionalism can and must be updated and adapted by addressing its colonial legacy and its Eurocentrism. It must accommodate cultural pluralism while insisting on a bottom line of universal values that should not be undercut. Global constitutionalism must also avoid double standards while properly distinguishing situations in law and fact. Finally, global constitutionalism needs to become more social by incorporating transnational social rights, strengthening investor obligations, further operationalising the international legal principle of transboundary solidarity, and acknowledging the nexus between the rule of law and development.
Abstract
In the context of a power shift away f rom the Western world, disenchantment with globalisation, and the rise of postcolonialist and posthumanist thinking, global constitutionalism is under pressure. The factual acceptance and normative appeal of the constitutionalist ‘trinity’ of the rule of law, human rights, and democracy needs to be re-examined. Erosions and attacks concern all three principles, and also institutions that embody them such as the International Criminal Court and the regional human rights courts. However, constitutional fragments in the international legal order (in its interplay with domestic law) appear to be resilient, in the context of ongoing, though slowed-down globalisation. We perceive islands of constitutionalism and an ongoing constitutionalisation in international law such as the recent reform of the working methods of Security Council in the direction of transparency (with an obligation to give reasons for the exercise of the veto). The paper argues that global constitutionalism can and must be updated and adapted by addressing its colonial legacy and its Eurocentrism. It must accommodate cultural pluralism while insisting on a bottom line of universal values that should not be undercut. Global constitutionalism must also avoid double standards while properly distinguishing situations in law and fact. Finally, global constitutionalism needs to become more social by incorporating transnational social rights, strengthening investor obligations, further operationalising the international legal principle of transboundary solidarity, and acknowledging the nexus between the rule of law and development.
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