Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures

Abstract

The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political ones) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in the recent years served as buzz-words in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. The paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfill constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict-solution requires a balancing of interests in the concrete case. Finally, because constitutionalism historically and prescriptively means to ask for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.

Keywords: constitution, constitutionalism, legitimacy, global governance, democracy, rule of law

JEL Classification: K33