CIAO DATE: 12/2012
Volume: 4, Issue: 2
2012
Editorial (PDF)
Once more the Goettingen Journal of International Law was involved in organizing an international conference and publishing the contributions. On 9 and 10 March 2012 scholars from Germany, Israel and Norway assembled in the “Paulinerkirche” in Goettingen to present their research on “Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law”. The symposium was the final step of a research project organized by the Institute of International and European Law of the Georg-August University Goettingen and the Minerva Center for Human Rights, Hebrew University, Jerusalem. Its central idea is that international constitutionalism is not only a topic contemporarily much discussed, but finds its precursors in earlier “German” constitutional approaches.
Acknowledgments (PDF)
Without the incredible support and help of the following people, we would not have been able to accomplish this ambitious project.
Introduction (PDF)
Tomer Broude, Andreas L. Paulus
Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law
German Federalist Thinking and International Law (PDF)
Dirk Hanschel
This paper examines the explanatory and the prescriptive value of German (and related) federalist ideas with regard to the constitutionalization of international law. The author contends that respective scholars have, on the one hand, developed federalist thought with regard to the national constitutional level which may help to explain or shape international processes of constitution-building. On the other hand, they have themselves promoted international federalism as a natural extension of their national constitutional doctrine, hence partially weakening the classical dichotomy between national and international law.
Alfred Verdross as a Founding Father of International Constitutionalism? (PDF)
Thomas Kleinlein
Alfred Verdross was one of the first scholars who transferred a meaningful concept of constitution to international law. Like international constitutionalists today, he aimed at establishing the autonomy of international law vis-à-vis State sovereignty and State consent. With his theory of moderate monism, Verdross refers to a further issue raised by today's multilevel constitutionalism, i.e. the relationship between international and domestic law. In contrast to some modern approaches, Verdross's use of the term ‘constitution' in international law was only metaphorical. More ambitiously, international constitutionalism also serves as a kind of meta-theory for international law in the present debate.
Making it Whole: Hersch Lauterpacht's Rabbinical Approach to International Law (PDF)
Reut Yael Paz
This article seeks to contextualize the international legal contributions of Hersch (Zvi) Lauterpacht (1897-1960) against his specific historical conditions. It therefore begins with an overview of his biography. The intention is to emphasize his Jewish background in the context of the overlapping cultural and social influences of his time. The article then moves to deal with the three main pillars of Lauterpacht's theoretical approach to international law - his ‘Kelsenian twist', the individual and nation State sovereignty. The purpose here is review them in light of his Jewish affinity and German-speaking legal education. The article is concluded with the argument that our understanding of Lauterpacht's international legal contributions could be infinitely richer when and if they are reread against a Babylonian Talmudic text, which is used below in an analogical fashion.
Francis Lieber on Public War (PDF)
Rotem Giladi
This paper examines Francis Lieber's concept of modern war as "public war" - in the Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber was not the first to engage the distinction between private and public war, his treatment of modern war as exclusively public nevertheless deserves special attention. It became, in time, a foundational concept of the 19th Century effort to modernize and humanize the laws of war. Today, it remains embedded, albeit implicit, in contemporary international humanitarian law and its paradigmatic interstate war outlook. Yet Lieber's public war definition was driven by the ideological sensibilities of his youth in Vormärz Germany: romantic nationalism, ardent republicanism, and profound faith in modernity and progress. It took normative form but was, essentially, an ideological assertion. Lieber's public war definition sought to offer ideological justification for the modern nation State, its formation and existence. It also sought to construct and justify, again in ideological terms, the formation, existence, and preservation of an international order comprised of nation States; such order, alone, could meet the challenges of modern conditions. For Lieber, limiting war to nations and States alone was an ideological imperative of progressive civilization in the modern age. Reflection on Lieber's public war definition suggest lines of inquiry that may produce a richer understanding of the intellectual foundations and ideological motivation of modern international law. At the same time, such inquiries compel historical, normative, and policy reconsideration of interstate paradigm of war and its costs. They also promise to enrich contemporary normative and policy debates about the regulation of privatized warfare and non-state actors.
Phillip-Alexander Hirsch
In the debate on the constitutionalization of international law, Kant's work Toward Perpetual Peace is the most important point of reference when talking about the intellectual origin and philosophical background of the idea of constitutionalizing international law. But while it is undeniable that Kant called for a juridification of international relations, it is far less clear which form of juridification Kant aims at. In this essay, I want to show that Kant's ultimate ideal of international law is neither a State of States nor the peace federation (which seems to be commonly accepted), but the cosmopolitan republic, that is, a single homogenous world State. Only such a cosmopolitan republic, backed up by enforceable laws, can be called a constitution in the Kantian sense. Kant's proposal of a peace federation is nothing but a first step towards this ultimate end. Though it is not a constitution, this peace federation still constitutes a rightful condition insofar as it firstly provides the legal framework for international politics to take place in and at the same time secondly assumes the moral and professional ability of lawyers and politicians in charge to conduct their decisions according to the ultimate ideal of a constitutional world order. International law in the Kantian sense is - as I will demonstrate - thus nothing but a constitutional conduct of government. Therefore, scholars who call for a constitutionalization of international law in the form of a multi-level legal system or conceive of present regimes, such as the UN, as a constitution are not following Kant in this respect. Under the presumption of sovereign nation States, the only thing we can hope for according to Kant is a legalization of international politics.
The Constitutional Function of Contemporary International Tribunals, or Kelsen's Visions Vindicated (PDF)
Tomer Broude
In this article the author makes two complementary arguments, one deceptively simple, the other deceptively esoteric. First, contemporary international courts and tribunals (most, though not necessarily all) are increasingly requested, or required (often, though not always), to adjudicate issues in ways that are tantamount to international constitutional judicial review of national acts and domestic measures, rather than traditional inter-state dispute resolution. This is a point that seems to have so far evaded most of the contemporary literature on the continually enhanced judicialized system of international law, and its constitutionalization. Second, in order to understand the emergence of this current predilection towards constitutional judicial review at the international level, it is instructive to look back to Hans Kelsen’s post-World War II visionary approach towards the (then) prospective constitutional role of the international judiciary. This approach is analogous to (and has its roots in) Kelsen’s Weimar-era positions on the preferred role of courts as constitutional guardians in domestic legal systems. These arguments are demonstrated through analyses of recent jurisprudence of the ICJ, the WTO, and the ECtHR.
Why Global Constitutionalism Does not Live up to its Promises (PDF)
Christian Volk
This paper argues that cosmopolitan constitutionalism suffers from a liberal bias when it comes to comprehend the challenges and conflicts of international politics. This liberal bias becomes obvious in the way cosmopolitan constitutionalism conceives the meaning and function of democracy in global governance. For the cosmopolitan constitutionalism, democracy is mainly thought of as a mechanism to guarantee a political process that brings about reasonable, sustainable and fair compromises between the diverging interests of states and individuals. Therefore, procedures have to be put in place which secure that the arbitrariness of those who govern is effectively restricted, while at the same time those who are governed are prevented from messing up the rational and reasonable decision- and law-making processes conducted by well-informed, coolheaded and responsible political leaders, judges and administrative elites. A balance is struck between responsiveness and stability, whereas politics has become a bad word. If these processes worked without anyone mentioning them, they would be perceived as sound and legitimate. But unfortunately this is not the case. The Battle of Seattle, the protest in Genoa, Davos or Heiligendamm are warning signs of how easily criticism can end up in outrage and violence, when disagreement is not institutionally recognized and the few opportunities to participate are experienced as marginal or useless. What we need, is a version of constitutionalism able to grant realm to conflict and contestation – in order to reveal the contingency of policy processes and to uncover the political character of international law and decision-making.
The Relationship Between Constitutionalism and Pluralism (PDF)
Geir Ulfstein
International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.
Markus Kotzur
The article discusses the potential of a constitutional matrix to conceptualize public international law. Next to criteria of constitutional quality the very functions of a constitution are analyzed. The constitutional reading of public international law is seen not in contrast to obvious fragmentations but as a means to deal with fragmental legal orders.
Lars Viellechner
Global constitutionalism still remains an essentially contested concept. While both its descriptive and normative usages remain unclear, the possibility and the desirability of framing the postnational constellation in constitutionalist terms meet equally strong objection. Yet, recently, even pluralist approaches to the globalization of law which call for a more radical departure from the statist legacy explicitly or implicitly refer to the notion of constitutionalism. Animated by democratic concerns for the inclusion of all those concerned by a rule as well as legal certainty and equality, they envisage a new kind of conflicts law that allows for a mutual recognition and reconciliation of the different legal orders and regimes emerging in world society. Hence, constitutionalism, when employed in a global context, appears but as a reminiscence of an historical achievement. It serves as a cipher under which the reconstruction of law under conditions of globalization has begun and will continue until more adequate concepts will be discovered.
The System Theory of Niklas Luhmann and the Constitutionalization of the World Society (PDF)
Clemens Mattheis
The article takes a critical look at the current ‘constitutionalization vs. fragmentation’ debate and examines it on a system theory-based outlook. The historical background deals with Niklas Luhmann’s system theory and analyses whether his move ‘from territoriality to functionality’ is applicable to modern international law. The contribution analyses a possible constitutionalization in Luhmann’s “world society” in form of structural couplings and beyond a societal constitutionalism or a postnational order. The essential argument is that there is a constitutional system-theoretical element in modern, state-centered international law: a value-based, ‘structural coupling’ between the political system and the law system in terms common values such as core human rights and basic principles.