Download International Constitutional Law and Democracy

International Constitutional
Law and Democracy
20.okt. 2011
Inger-Johanne Sand
• Nation-states – sovereign competences – constitutions,
domestic law, citizens,
• Historical, social, cultural contexts,
• Regions - Supranational law ?
• International law – treaties , customary law, jus cogens,
• Non-intervention, voluntary cooperation, common
responsibilities?
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International organisations,
NGOs, transnational corporations
Transnational law
Increasing international cooperation,
International constitutionalism ?
• Activities are becoming increasingly
inter- and transnational – or crossboundary :
• - international trade,
• - financial markets,
• - economic interdependence,
• - international pollution and environmental and
climate change,
• - international trade means that we may place our
pollution in other parts of the world,
• - international migration,
• - international human rights,
• - international cultural exchanges,
• The distinction between internal and external
problems (and for responsibility) is becoming
increasingly blurred and dissolving,
• Factual globalization may mean that
international problemsolving may be needed:
• - Environmental and climate problems. (factual)
• - International trade and international financial
markets. (constructed)
• - International human rights standards.
(normative)
• - International migration. (factual, constr.,
normative)
• What are constitutions?
• - state competences, based on full sovereignty, relations
between state and citizens,
• - comprehensive competences, - legal framework,
• - independent / self-sufficient legal systems,
• - self-referential,
• - vertically integrated,
• - based on a ”people” ?
• - values, legitimacy ?
• International treaties,
• - enumerated competences,
• Unity vs fragmentation of law,
• How do we deal with the international
fragmentation of law?
• Constitutionalism ? – trying to connect the
different regimes,
• Legal pluralism ? – accepting the different
regimes,
• A radical rethinking of the conflict of laws.
International law – over time :
• The Westphalian model, 1648 :
• - nation-state sovereignty vs. international law: cooperation among states on a minmum level,
• The UN model 1945 :
• - an increased ambition of cooperation : ,
• - international human rights : 1948 UN Declaration,
• The Cosmopolitan model :
• The realization that many political and economic
problems cross the boundaries of the nation-states,
• Trade, environmental and climate problems, human
rights are in fact international,
• International law
• – the law between nation-states, (UN)
• - in substance, - and in legal validity.
• Supranational law
• - law by international organizations which has been
delegated specific parts of the constitutional power of the
nation-states, (EU)
• - the legislation has direct effect on citizens,
• Transnational law
• - law or legal practice which has been developped
among non-state actors, - such as experts, NGOs,
standardization committes, (ISO)
• - lex mercatoria : private international law
• Different combinations of domestic and
international law :
• Multi-level governance
• Separate authorities, but cooperating,
• Overlapping competences,
• International treaties – which are applied by nation-states
and copied in domestic law,
• - with both domestic courts and international courts or
dispute settlement bodies, with varying degrees of treaty
obligations,
• Supranational treaties,
• International treaties overlapping the
competences of nation-states, also the
constitutional competences,
• - legislative,
• - adjudicative,
• - executive,
• Supranational competences,
• Close to supranational competences,
• ”De facto” supranational,
• Cross-boundary factual dynamics – and the
pressure this exerts on law and politics,
• - trade, environment, internet, migration, technologies,
travelling, cultural exchange, climate change etc.
• The constitutionality of the EU :
• - direct effect of regulations, directives and treaties,
• - not only the governments, but also the peoples,
• - supranationality,
• - comprehensive legislative competences,
• - comprehensive administrative apparatus/ powerful
Commission with comprehensive adm., execut powers,
• - admin and judicial decisions sanctionable in member st.
• - judicial review of directives in relation to treaties,
• vertically integrated politico-legal systems,
• judicial review
• no legislative/constitutional ”kompetenz-kompetenz”
• What is International constitutional law ?
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What is constitutionalism – in law ?
- a comprehensive juridical order, - of its ”own”,
- originality,
- unified and unique, - no higher order,
- nation-state sovereignty,
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What is constitutionalism in ”the new international law”?
- nation-states have matured,
- increased international cooperation is needed,
- increasing numbers of international treaties,
- increasingly effective, in terms of sanctions,
- comprehensive legal competences in matters which are
also internal, and cross-boundary,
• Multi-level governance – and the new
international law :
• - overlapping legal treaties and national
constitutions,
• - different modalities : - overlapping, combined,
cooperating, competing, exclusive,
• Example :
• - European nation-state and their constitutions,
• - European Union treaties, - legislative, adjudicative, - executive competences,
• - European Convention of Human Rights,
• How do we describe this in terms of
constitutionality ?
• (1) The constitutions of nation-states are affected
by the more comprehensive and supranational
treaties,
• - overlapping competences with constitutional
relevance,
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• (2) International organizations – emerging with
constitutional qualities,
• - vertical integration of institutions and
competences,
• - legislative, adjudicative, executive,
• (3) The fragmentation of international law
• - fragmentation, legal pluralism, constitutionality,
• ”Global legal pluralism”, Koskenniemi,
• - the increasing number of international teraties,
organizations, courts etc.,
• - the lack of international ”supra-treaties”,
• - the fragmentation of international law into various
”sector”-regimes,
• - the same themes may be dealt with by several legal
institutions, on the basis of different legal texts,
• - possible solutions to fragmentation :
• - constitutionalism, - developping connections between
the various treaties and institutions,
• - legal pluralism, - developping the different legal
regimes,
• What are the consequences of the different options?
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- the play of unity and fragmentation,
- unity as hegemonic,
- fragmentation as counter-hegemonic,
The current situation of international law:
- a variety of highly specialized regimes of
international law : - trade law, - human rights, environmental law, - intellectual property rights,
etc.,
• - international law: - customary law, principles,
general conventions and treaties,
• - constitutional vs
• - non-hierarchical and fragmented,
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- international law is created treaty by treaty,
- there is no povoir constituant,
- no international people,
- still international treaties may have de lege or
de facto supranational effects on national
regimes, - or other vital effects,
• Legal pluralism: - from local law, native law, lex
mercatoria,
• - now: - from the social differentiation of
modernity,
• - there is no meta-rationality,
• Constitutionality in international organisations
and treaties :
• - comprehensive powers,
• - vertically integrated : - legislative, adjudicative,
executive,
• - judicial review,
• - kompetenz-kompetenz (constitutional),
• - direct effect,
• - supremacy,
• New problem: - overlapping and parallell
competences,
• Legitimacy in law :
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- democratic legislation,
- rule-of-law, autonomous courts,
- accountability,
- division of powers,
- fundamental rights ensured,
• - output legitimacy,
• - processual legitimacy,
• The modern state evolving :
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territoriality,
the people,
control on the means of power, - constitutions,
impersonal structure of power,
Division of powers
democracy
legitimacy, (individual rights and democracy, citizenship),
increasing interaction, / complex interdependence,
factually,
• increasing number of international treaties and principles,
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Vital democratic qualities :
- individual basic (freedom) rights,
- citizenship – right to vote,
- open and democratic elections,
- democratic parliaments,
- majority voting,
- publicity, transparency in decision-making,
- constitutional, (predictable, authoritative, supreme))
- executive accountability,
- autonomus courts, rule-of-law,
- a common civil society,
• Liberal democracy
• focussing on the rights of the individuals, and giving them
room,
• society is accumulated private interaction,
• society before the state,
• politics : bundling together private interests,
• citizenship : negative rights (from oppression),
• legal system : securing the rights of individuals, - some
ideals are set by a higher law, (problem : how are the
limits of the rights of the individuals seen?)
• neutral state and administration,
• Republican democracy – Communitarianism
• emphasizing the functioning of society,
• of being able to formulate a common will,
• politics is constitutive for the socialization processes, and for the
formulation of a social ethic,
• politics is not only bundling together, it also the process itself - the
collective process, and the formulation of something collective,
• civil society as its base, as opposed to the state and the market,
• emphasizing active participation, (problem : exclusivity), and
responsibility,
• the process adds something more – the process may lead to another
an dbetter result than mere accumulation, - an inclusive process
where one may reach a better understanding,
• politics is : reaching mutual understanding through processes, society organizes itself through communicatively united citizens,
• legal rules are the result of that community and its processes,
• there may however be an overload of ethical discourse,
• Deliberative democracy :
• the openness to persuasion by reasons referring to the
claims of others as well as of ones own,
• “good faith” persuasion - objectively oriented,
• communitarian discourses may put too much emphasis
on common values and the process itself, - liberal
processes may be too compromise-oriented,
• deliberative theory emphasizes a rational discourse
which excludes power,
• there is a need a norms which are valid beyond each
community – decisions on this can be reached by rational
procedures,
• based on constitutional and fair procedures,
• Depending on the conditions of communication,
• procedures matter more than in the liberal model
• High level of intersubjectivity,
• New treaties and international
organizations, post 1945 – legal
globalization :
• the UN – 1945, - increasing ambitions for international
political and legal cooperation, - the UN Charter, the
Security Council, art.39,
• Sub-UN: - FAO, WHO, UNICEF, UNDP, UNCTAD,
• European Convention of Human Rights, 1950, - and its
Court, the Council of Europe,
• The Universal Declaration and the UN Conventions on
Human Rights,
New treaties and organizations, economic :
• GATT, 1947, (the Washington Consensus)
• IMF,
• the World Bank,
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• WTO/GATT
• the Dispute Settlement Understanding (DSU),
1992,
• WTO : - TBT, SPS, TRIPS, 1992,
New treaties and organizations, trade, evironment :
• The European Community, 1958, - the Rome treaty, creating a common market, and closer cooperation
among the peoples of Europe, - new and more ambitious
institutions: The Council, the Commission, the Court, 1986 : qualified majority voting, Single European Act, 1992 – Maastricht (the Euro), Schengen, Amsterdam,
Nice, Lisbon,
• Other regional (similar) treaties,
• The environment : Stockholm, 1971, and Rio
Declarations, 1992,
• The climate : - the UN Framework Convention on Climate
Change, - the Kyoto protocol,
• The International Criminal Court, ICC, 2004,
• The new legal regimes, combinations of :
• Include national, inter-, supra- and transnational law.
• Comprehensive transferals of supranational legal powers
to the EU, - legislation by the Council and the EUparliament,
• An increasing number of functioning and efficient courts
• International treaties on environmental law,
• WTO-law – regulating international markets, with a courtlike dispute resolution system, and effective economic
sanctions,
• ECHR, - functioning court with binding, but not
sanctionable decisions,
• UN human rights committees,
• International regulations on asylum and international
migration,
• Climate change regimes with strict regulations.
• International Criminal Court – individual responsibility,
The UN
• From ”the great powers” to all member states,
• Goals :
• - peacekeeping, security, - deal with international
disputes, - economic/social cooperation, - human rights,
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General Assembly, - all members,
- political forum for discussions,
Security Council, - 15 members,
- decisionmaking power,
- 5 permanent members with veto power,
Secretariat and the General Secretary
International Court of Justice,
• Peace and security :
• - the lack of an ”army” at the disposal of the UN,
• - UN Charter ch.VII, art.39
• - ”The Security Council shall determine the existence of
any threat to the peace, breach of peace or act of
aggression and shall recommendations or decide what
measures to be taken in accordance with art.41 and 42.”
• Art. 41 – measures not involving use of armed force,
• Art. 42 – measures involving armed forces, if necessary,
• Example : - The Iraq – Kuwait conflict 1990/91,
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- The Iraq war, 2003 - ,
• Resolutions may the SC decide ”when there are acts of
aggression” and where ”armed forces” may be used,
• Failures: - Middle East, Kashmir, Darfur, Somalia etc.
• Human Rights :
• - 1948 – The Universal Declaration of International
Human Rights,
• - 1966 – The two covenants of Economic, Social and
Cultural Rights, and Civil and Political Rights,
• - Later : Covenants on the elimination of discrimination
against women, - on the protection of the rights of
children, - on the elimination of discrimination,
• Monitoring :
• - reports submitted by the States,
• - Inter-state complaints,
• - monitoring committees,
• Human rights :
• - national sovereignty vs. human rights,
• - individual/integrity, - political/civil, - social and
economic, - cultural rights ?
• - law – politics – morals/ethics ?
• Consensus :
• - respect for human dignity,
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- rights of groups and peoples,
- no racial discrimination,
- states must not engage in grave h.r. violations,
- the international community may be justified in
intervening by peaceful means,
• Economic and social cooperation :
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ECOSOC – Economic and Social Council,
- 1974 – The New international economic order,
- several UN sub-organizations :
- UNICEF
- FAO, WHO,
- UNCTAD,
- UNDP,
- Emergency and Relief work,
• EU – constitutionalization of
international law?
• - comprehensive powers,
• - enumerated powers,
• - vertical integration,
• - functioning courts,
• - judicial review,
• - judicial, but not legislative comptencecompetence,
WTO
• GATT – 1947 ,
• - ”general elimination of quantitative restrictions”,
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WTO 1992
Dispute settlement understanding
- Panel and Appellate Body,
From ”diplomatic to judicial problemsolving”,
Cases : - meat hormones (97), GMO (2006)
SPS, TBT,
TRIPS,
United Nations Framework on Climate Change
and Control, Kyoto Protocol :
• - goal : to achieve stabilization or reduction of
greenhouse gas concentration in the
atmosphere,
• - present and future generations,
• - precaution, - sustainable development,
• - developed and developing countries,
• - market-based instruments,
ICC – International Criminal Court
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- individual responsibility for state leaders,
- autonomus international court,
- ”crimes against humanity, mass murders etc.”
Ruwanda and Yugoslavia tribunals,
New aspects of international law :
• The increasing internationalization and
globalization of law,
• - treaties and organizations,
• Functioning international courts,
• - WTO/DSB, - ICJ, - ICC, - ECJ, - ECHR,
• Multi-level governance,
• - several levels of government and governing working
together, but not always coordinated,
• The fragmentation of law,
• - not one constitution, but several parallel treaties,
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- 125 tribunals or courts,
- more effective and competing courts,
• Unity vs fragmentation of law,
• How do we deal with the international
fragmentation of law?
• Constitutionalism ? – trying to connect the
different regimes,
• Legal pluralism ? – accepting the different
regimes,
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Regime collisions :
- WTO / WHO,
- UN / WTO,
- ICJ / ICTY,
- EU / ECHR,
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Transnational communities, lex Mercatoria,
- professional, technical, expertise bodies,
- developing international standards,
- examples : ISO, Helsinki declaration,