Archive for EJIL

Constitutionalism and International Law: Clarity from “Impurity”

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , on October 26, 2008 by jeremyleong

There has been resurgence in discourse relating to the relationship between domestic constitutional law and international law. Further, perhaps in an effort to re-examine normativity in international relations, there has been increased discussion of the prospects of international constitutionalism. The latest edition of the European Journal of International Law has several such articles:- “Human Rights as International Constitutional Rights” by Stephen Gardbaum and “Human Rights, International Economic Law and ‘Constitutional Justice’” by Ernst-Ulrich Petersmann, amongst others. Similarly, the latest edition of the International Journal of Constitutional Law features a number of articles which examine the impact of international law on domestic constitutional law and vice versa. Elements of this body of scholarship draw on disciplines such as moral philosophy and rational choice theory.

 

This enterprise is, however, not new. But it has undoubtedly taken on added sophistication. Hans Kelsen was one of the first to think about the relationship between the domestic and the international legal orders. From his “Pure Theory of Law”, Kelsen posited that international law is a source of validity for changes in the basic norms of domestic legal systems. This suggests that all domestic constitutional orders derive validity from international law. Further, this theory is considered “pure” insofar as it is derived from cognition focused on law alone. To Kelsen, an “impure” theory of law would include ingredients of psychology, ethics and other disciplines or ideologies.

 

What would Kelsen say about the “purity” of current interdisciplinary scholarship in international constitutionalism then? Domestic constitutional law scholarship has itself evolved along inter-disciplinary lines. For one, fairness and justice discourse is seldom far away, as evidenced by the works of Rawls and other moral philosophers. Further, public choice theory and other law and economics theories have had significant impact on domestic constitutional law scholarship. I suppose it is only natural for these and other extra-legal disciplines to have had the same effect on international constitutional scholarship and hopefully, increased scrutiny from multiple angles will help clarify the factors that continue to divide the international and domestic spheres. I believe a collection of essays edited by Professors Joel P. Trachtman and Jeffrey Dunoff on this very topic is forthcoming. We shall update you accordingly.

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Journal Watch (AJIL April 2008/EJIL 2008)

Posted in Journal Watch with tags , , , , , , on October 9, 2008 by jeremyleong

Journal Watch is the section in FILA…Live which keeps an eye on the various major international law journals and yearbooks and looks out for articles which reflect an interdisciplinary approach to international law. Where possible, convenient and legal, we shall also provide the relevant links to access them. We shall also be adding book reviews of forthcoming or recently launched books to the discussion paper series. So, please look out for that. If we have missed out on any articles or books which are noteworthy, please do contact us. Further, if you wish to submit a substantive commentary on any particular book and/or article, please also contact us. With that bit of business resolved, we move on to the fun stuff.

 

American Journal of International Law, April 2008, Vol. 102(2)

 

The two main articles in the latest edition of the AJIL have pronounced constructivist leanings:- Eyal Benvenisti, in “Reclaiming Democracy: the Strategic Uses of Foreign and International Law by National Courts” and the Fletcher School’s very own Ian Johnstone, in “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit”. In short, Benvenisti claims that national courts are utilizing the common languages of international and comparative constitutional law to stand up against interest groups and foreign governments. In the other article, Johnstone addresses a “deliberative deficit in the UN Security Council” which causes a de-legitimizing effect on UN Security Council resolutions. He suggests some reforms which may improve the quality of deliberations and hence enhance the legitimacy of the same resolutions.

 

European Journal of International Law, September 2008, Vol. 19(4) (accessible at http://ejil.oxfordjournals.org/content/vol19/issue4/index.dtl)

 

This edition of EJIL somewhat continues where AJIL left off with a selection of articles on constructivism as well as international constitutionalism. Ryan Goodman and Derek Jinks in “Incomplete Internalization and Compliance with Human Right Law” emphasize the point from their earlier work i.e. that acculturation is a distinct social process by which international law influences states and that human rights law might harness this mechanism in designing effective global regimes. The abstract provides:-

 

“In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance. The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling – suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest… that (human rights law) is under-enforced – not that it is insufficiently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it.”

 

Further, Stephen Gardbaum in “Human Rights as International Constitutional Rights” and Ernst-Ulrich Petersmann in “Human Rights, International Economic Law and ‘Constitutional Justice’” re-visit domestic constitutional law’s relationship with international law. Without saying much about either article, it is notable that this relationship also continues the “domestic law analogy” found in some international law analysis. In particular, law and economics analysis of domestic law has been analogously applied to aspects of international law in a plausible manner. See generally, Joel Trachtman, The Economic Structure of International Law (book review forthcoming).