Why Wield Constitutions to Arrest International Law?
16 Asian Yearbook of International Law 87-128 (2010)
42 Pages Posted: 5 Dec 2010 Last revised: 26 Aug 2013
Date Written: October 31, 2011
A constitution’s seductive potential cannot be ignored even in international law. Though partisan in character, a constitutional lens, inter alia, is increasingly used to see international law today. While European lawyers interpret the Kadi judgement of the Court of Justice of the European Union (ECJ) as pluralist — a case of embracing monism upside-down — a developing country observer clearly sees Kadi as dualist. American scholars envisage international law subordinate to the United States’ constitution. From a studied monism Europe has moved to pluralism while the U.S. has always been dualist. In the post-colonial era, many developing and least developed countries (Third World) have established a successful constitutional democracy. Little surprise then, a new found constitutional confidence is colouring such countries’ international advocacy. In India - QRs, India drove the separation of power argument that New Zealand had made in the Rainbow Warrior case a step further. However constitutionalism, as an ideology, remains, as is often the case, an inconclusive question for an eternally observing Third World. This article discusses the rise of constitutionalism in international law and the Third World’s possible responses.
(Winner of SATA Prize for International Law for 2010) 16 Asian Yearbook of International Law (2010)
Keywords: Third World, WTO, UN, Constitutionalism, the ECJ, Kadi, American Exceptionalism
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