International Constitutional Order Research Articles

The Human Rights-Based Constitutionalization of Global Environmental Protection: A Framework for Action and Understanding

Abstract The underlying premise of a global constitutional order is dictated by the singular, unitary nature of the environment, a deeply interdependent whole. This premise aside, international environmental law, as we know it today, is far from constituting an international constitutional order. Rather, it presents a broad set of principles and mixed legal and political commitments of states dispersed in a myriad of international instruments possessing varying degrees of formality, legal status, scope of regulation, and effect. Its unparalleled dispersion, organizational and regulatory flexibility, and overall indeterminate features of normative content and procedure are neither improbable nor inconceivable for a relatively new genre of international legal regulation, namely the environment. Simply put, a consolidated international legal order as it ordinarily exists in other arenas is missing in the case of the environment. In shaping its contents and effects, a new institutional ally is found in national and regional judicial bodies, which instead rely on human rights to ground their decisions in pursuit of climate goals and aspirations. The ensuing result is that framing the order that will govern the global environmental change, resort must be made to the models already fashioned by the practice of national and regional systems. Ultimately, this article proposes the principal parameters of a constitutional order for the environment.

The Emerging International Constitutional order: The Implications of Hierarchy in International Law for the Coherence and Legitimacy of International Decision-Making

The article examines the contours and implications of the emerging international constitutional order. The "constitutional" nature of this order relates to the fact that it contains certain fundamental substantive and structural norms that form a supreme legal framework for the exercise of public power. The substantive elements primarily include the value system of the international legal order, meaning norms of positive law with a strong ethical underpinning (notably human rights norms) that have acquired a special hierarchical standing vis-à-vis other international norms through state practice. The structural elements refer to the subjects of the international legal order that collectively constitute the international community (polity), as well as the mechanisms for enforcement of the international value system.
 
 This vision of an international constitutional model is inspired by the intensification in the shift of public decision-making away from the nation state towards international actors of a regional (for example EU) or functional (for example WTO, UN) nature, and its eroding impact on the notion of a “total” constitutional order, where the fundamental substantive and structural norms that form the supreme legal framework for the exercise of public power are concentrated in the nation state. It is also inspired by the belief that such a supreme legal framework is only possible in a system where different national,
 regional and functional legal orders complement each other in order to form an international constitutional order.

Judicial Regionalism's Thwarting of UN Security Council Chapter VII Punitive Cosmopolitanism: Measuring the Effects on International Jurisdictional Constitutionalism

Under Chapter VII the UN Security Council has the authority to legally condemn certain behaviors by enacting binding measures on both states and individuals. This has been interpreted through measures undertaken by the Security Council, such as the institution of international tribunals on an inter-state level, and the imposition of sanctions on a personal level.Focusing on Africa and Europe, this Article aspires to demonstrate how regional actors have acted in order to undermine the UN Security Chapter VII punitive cosmopolitanism, either through the institution of regional criminal courts meant to antagonize the International Criminal Court or through judicial decisions that clearly negate the Council's sanctions regime. In order to preserve international punitive cosmopolitanism, the Article will proceed to develop how regional jurisdictional initiatives can be integrated in the general international constitutional order, in both the criminal and the civil/administrative field.

ULUSLARARASI EKONOMİK ANAYASAL DÜZEN

One new branch of the theory of Public Choice, Constitutional Economics, aims to limit the discretionary power of the governments. In this article we suggest that this approach can be applied to the civilized world through international agree- ments such as the GATT and the Maastricht Treaty and international organizations like OECD , IMF and WTO. Of course the best solution is marketled solution. However, as the market led solution needs a long time to be realized, the second best solution is to reach this goal, for the time being, through unternational agreements and institutions. We call this an 'International Constitutional Order".

Ordo Ab Chao: Non State Actors of Aggression & the Use of Force

This treatise aims to explore, whether the global networked terrorism that was pioneered by Al Qaeda, is simply an isiolated phenomenon or it is part of a more general transition in warfare and the international constitutional order. It then proceeds to explore, whether existing legal norms in the use of force have kept up with this evolution and whether there is a need for a new legal paradigm with regard to national security, in both the domestic and the international front. This new paradigm, could be based in a new and less absolute concept of state sovereignty, according to which States could be subject to outside intervention, including the possibility of military action, if they are in violation of certain international obligations they are bound to.

Non-Traditional Security Threats in the Border Areas: Terrorism, Piracy, Environmental Degradation in Southeast Asian Maritime Domain

Abstract. In addition to facilitating peaceful trade and economic development, sovereign territory, territorial waters and international waters are being used by various criminal groups that pose threats to governments, businesses and civilian population in Southeast Asia. Nonstate criminal maritime activities were not receiving appropriate attention as they were overshadowed by traditional military security challenges. Yet more and more frequently, the non-traditional actors challenge lines of communication, jeopardize access to strategic resources, complicate traditional defence tasks, and harm the environment. Understanding the nature of non-traditional threats, and the ways to combat them, requires international legal, historical and political science analysis within a united problem-oriented approach. A fair critique to pure interest, power and knowledge -based theories of regime formation was developed by E.K. Leonard’s1, who explained the evolution of the international system from the global governance perspective. The present study is based on the premise that pure nation-state approaches are incapable of providing a theoretical ground for addressing the growing influence of international criminal networks in South East Asia. From an international relations theory perspective, the author of this study agrees with D.Snidal2 that the hegemonic stability theory has "limits" and is insufficient in describing modern challenges to sustainable international security regime, including non-traditional threats, where collective action is more efficient from an interest and capability standpoint. At the same time the author of this study does not share the viewpoint on "marginalization"3 of international law in current international order due to its fragmentation and regionalization4 and "global power shifts"5 . The United Nations, as a global institution at the top of the vertical hierarchy of international legal order, and the EU as an example of "self-contained" regime along with other subsystems like South East Asia may have different approaches to global governance, international constitutional order, or particular cases such as the measure of infringement of human rights when targeting individuals suspected of terrorist links. Yet international law remains the key part of the Asian and global security regime. The hypothesis of this study is that the "void of governance" regime in territorial and international waters provides lucrative environment for developing terrorism, piracy, environmental degradation, and other criminal activities that pose untraditional threats to the regional security. This "void of governance" regime can be caused by either, or both, de jure or de facto insufficient control over particular marine territories.

International constitutionalism and the state

International constitutionalization presents a challenge to the traditional international legal order and particularly the role of the state. The state is currently in a period of flux within international law. Constitutionalization presents one possible future understanding of the role of the state in international governance. Arguably, for a process of constitutionalization to occur some core norms of constitutionalism must be present. Two norms of constitutionalism, the separation of powers and democratic legitimacy, present particular difficulties for the role of the state in current international law. As long as state’s actions as part of an international constitutional order remain unresolved, the process of constitutionalization itself cannot said to be complete or indeed legitimate.

E. de Wet and J. Vidmar (eds), Hierarchy in International Law: The Place of Human Rights

The book under review, Hierarchy in International Law: The Place of Human Rights, is one outcome of a research project at the Amsterdam Center for International Law. The broader project has the title: ‘The emerging international constitutional order: the implications of hierarchy in international law for the coherence and legitimacy of international decision-making’. The debate on whether and in what manner the international legal order should be conceptualised in constitutional terms is long running and includes various theoretical perspectives. Hierarchy in International Law does not attempt to add another strand of theory to this debate. Rather it seeks to contribute to the debate by examining how international human rights law has been treated by judicial bodies when it conflicts with other international law. The premise of the book is that if international human rights law is treated by courts in a favourable manner when it conflicts with other international...

The emerging international constitutional order: the implications of hierarchy in international law for the coherence and legitimacy of international decision-making

The article examines the contours and implications of the emerging international constitutional order. The "constitutional" nature of this order relates to the fact that it contains certain fundamental substantive and structural norms that form a supreme legal framework for the exercise of public power. The substantive elements primarily include the value system of the international legal order, meaning norms of positive law with a strong ethical underpinning (notably human rights norms) that have acquired a special hierarchical standing vis-à-vis other international norms through state practice. The structural elements refer to the subjects of the international legal order that collectively constitute the international community (polity), as well as the mechanisms for enforcement of the international value system.This vision of an international constitutional model is inspired by the intensification in the shift of public decision-making away from the nation state towards international actors of a regional (for example EU) or functional (for example WTO, UN) nature, and its eroding impact on the notion of a “total” constitutional order, where the fundamental substantive and structural norms that form the supreme legal framework for the exercise of public power are concentrated in the nation state. It is also inspired by the belief that such a supreme legal framework is only possible in a system where different national,regional and functional legal orders complement each other in order to form an international constitutional order.

The Constitutionalization of the International Legal Order

A continuing debate within international law research is whether there is an emerging international constitutional order. This journal devoted an issue to this discussion and there have been a number of books and articles written on the subject. Indeed, the philosopher Jürgen Habermas has recently joined the debate by writing an essay entitled (in the English translation) ‘Does the Constitutionalization of International Law Still Have a Chance?’ The essay reminds the reader of constitutionalism's original philosophical roots in Kantian cosmopolitanism. Habermas argues that the world dominated by nation-states ‘is indeed in transition towards the postnational constellation of a global society’. He contrasts this vision with the realist opinion that the taming of political power through law is only possible within a sovereign state and with a more recent view postulating a vision of a liberal world order under the banner of Pax Americana. In support of the Habermas position, it can be argued that as a result of the UN 60th Anniversary Summit's adoption of the international norm of ‘the responsibility to protect’, there is a trend towards constitutional values in our international system. As Anne Peters states, ‘[t]he most fundamental norms might represent global constitutional law.’

The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order

This article explores the composition of the emerging international value system, including its hierarchical components. It also contrasts this fragile international value system with the more strongly developed European value system (European public order), as concretized by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. It first argues that international human rights norms constitute the ‘core content’ of a constantly evolving and layered international value system. Within this value system, a special but fragile hierarchical status is granted to those human rights norms that qualify as jus cogens and/or erga omnes norms. Thereafter it explores the manner in which the European Court of Human Rights has concretized the normative superiority of obligations under the European Convention on Human Rights for member states vis-à-vis other norms of public international law, to the extent that a conflict between these norms arises. It concludes by examining whether these developments could also strengthen the international value system through a spill-over effect via the work of international human rights bodies and national courts. This, in turn, would strengthen the ability of the international value system to determine the outcome of conflicts between international obligations stemming from different international regimes.

The International Constitutional Order

Constitutionalism is a deeply contested but indispensable symbolic and normative frame for thinking about the problems of viable and legitimate regulation of the complexily overlapping political communities of a post-Westphalian world.1

Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law–making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law–making and international institution–building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.