Law Commons^™

The Merits Of Global Constitutionalism, Anne Peters

Indiana Journal of Global Legal Studies

Global constitutionalism is an agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere. Global constitutionalization is the gradual emergence of constitutionalist features in international law. Critics of global constitutionalism doubt the empirical reality of constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is normatively dangerous because it is anti-pluralist, artificially creates a false legitimacy, and promises an unrealistic end of politics. This article addresses these objections. I argue that global constitutionalization is likely to compensate for globalization induced constitutionalist deficits on the national …

Introduction: Global Constitutionalism From An Interdisciplinary Perspective, Anne Peters, Klaus Armingeon

Indiana Journal of Global Legal Studies

Global Constitutionalism – Process and Substance, Symposium. Kandersteg, Switzerland, January 17-20, 2008

Defragmentation Of Public International Law Through Interpretation: A Methodological Proposal, Anne Van Aaken

Indiana Journal of Global Legal Studies

Fragmentation of public international law (PIL) is perceived as a growing problem and answers to it are proliferating. International courts and tribunals are adjudicating ever more on issues that would be considered-were they not transnational or international in nature-constitutional problems. In national law, countervailing values, or intra-constitutional conflicts, are reconciled through a balancing of those values that is usually embedded in the application of the proportionality principle. A similar mechanism in PIL remains underdeveloped from a methodological point of view. This article aims to develop a methodological proposal for defragmentation through interpretation, drawing on legal theory, to be more precise …

Is There An International Environmental Constitution?, Daniel Bodansky

Indiana Journal of Global Legal Studies

The surge of interest among international lawyers in "constitutionalism" represents one of several efforts to reconceptualize internationa governance; others include the research projects on global administrative law and legalization. The article applies the constitutionalist lens to international environmental law-one of the few fields of international law to which constitutionalist modes of analysis have not yet been applied. Given the protean quality oft he terms "constitution"and "constitutionalism,"t he article begins by unpacking these concepts. By disaggregating these concepts into a number of separate variables, which have more determinate, unambiguous meanings, we can answer the question, "Is there an international environmental constitution?", …

Civil Rights In International Law: Compliance With Aspects Of The "International Bill Of Rights", Beth Simmons

Indiana Journal of Global Legal Studies

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-à-vis their own governments. This article discusses the development of aspects of international law relating to civil rights and argues that if this body of law is meaningful, we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because doing so is not generally in the interest of potential "enforcers"), I argue that international civil rights treaties will have their greatest effect where stakeholders-local citizens-have …

When Common Interests Are Not Common: Why The Global Basic Structure Should Be Democratic, Andreas Føllesdal

Indiana Journal of Global Legal Studies

The global constitution-the fundamental international norms and structures that serve constitutional functions-should include mechanisms of democratic contestation and accountability. This central claim of global constitutionalism faces three objections extrapolated from arguments made by Andrew Moravcsik and Giandomenico Majone in debates about the democratic deficit of the European Union (EU): the global constitution only regulates issues of low salience for citizens; democratic control is explicitly counter to the self-binding system that international regulations aim to achieve; and the EU's track record suggests that democratic control at the international level may be unnecessary to ensure congruence between voters' preferences and actual regulations. …

Constitutionalization And The Unity Of The Law Of International Responsibility, André Nolkaemper

Indiana Journal of Global Legal Studies

The law of international responsibility fulfills essentially two functions: reparation for injury and protection of the rule of law and global order. Notwithstanding the fundamental difference between these objectives, the law of international responsibility traditionally has been conceived in unitary norms consisting of a single set of principles that applies to all breaches of rules of international law. With the further development of international law that unity becomes difficult to maintain. On the one hand, there is an increasing need for a further refinement of liability principles for the determination of compensation for injury. On the other hand, the process …

On The Constitutionability Of Global Public Policy Networks, Petra Dobner

Indiana Journal of Global Legal Studies

Global Public Policy Networks (GPPNs) are increasingly influential in the global policy-making process. According to the Global Public Policy Institute, GPPNs are cross-sectoral coalitions of actors from governments, international organizations, civil society, and private industry. In structure, these networks differ from traditional hierarchical organizations, but their primary functions-negotiation, coordination, rulemaking, and implementation-pick up the classic tasks of formal international organizations and intergovernmental cooperation.

The power and acceptance of these networks are based on the real or alleged expertise of their members, their former or current formal positions in national or international organizations or private industry, and their personal connections. Although …

Constitutionalism, Legal Pluralism, And International Regimes, Alec Stone Sweet

Indiana Journal of Global Legal Studies

The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part L I argue that most accepted understandings of "constitution" would readily apply to at least some international regimes. In Part II,I discuss different notions of "constitutional pluralism," and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward an argument that the European Court of Justice, the European Court of Human Rights, and …

International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann

Indiana Journal of Global Legal Studies

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and …

An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor

Indiana Journal of Global Legal Studies

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas …