Compensatory Constitutionalisation: A Comparative Perspective

Abstract

Legal scholars argue that there is an emerging global compensatory constitution. This denotes a set of compatible supranational and national institutions that fulfil functions hitherto fulfilled by national constitutions. Thus, de-constitutionalisation at the national level, which, as this strand of literature argues, has been brought about by forces such as globalisation, is compensated for. There are strong hints that such constitutionalisation takes place in a formal sense: there is an increasing number of norms which could be seen as elements of a new global constitutional order. But it is far from clear whether these norms make a difference. In this paper we ask whether states comply with this presumably new constitutional order. We distinguish between three types of rights which are granted by a constitution—political, economic and social rights. In this paper we focus on the economic and social components of the emerging global constitution, which have been neglected in previous research. We study compliance with International Labour Organization (ILO) and World Trade Organisation (WTO) norms. The ILO is the major source of a global social constitution; the WTO is the major source of a global economic constitution. We show that compliance is very uneven. Whilst formally a global constitution may be in the making, it makes little difference for citizens.