Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry

Description

The current system of international law is experiencing profound transformations. Indeed, the simultaneous processes of globalization combined with the disintegration of international systems of governance and law-making pose complex challenges for legal scholarship. The doctrinal response to these challenges has been theorized within two seemingly contradictory discourses in international law: fragmentation and constitutionalisation. This book takes an innovative approach to international law, viewing the processes of the fragmentation and constitutionalisation as being profoundly interconnected and reflective of each other. It brings together a select group of contributors, including both established and emerging scholars and practitioners, in order to explore the ways in which the problems of fragmentation and constitutionalisation are viscerally linked one to the other and thus mutually conditioning and stimulating. The book considers the theory and practice of international law looking at the two phenomena in relation to the various fields of international law such as international criminal law, cultural heritage law and international environmental law. Cover Half Title Series Information Title Page Copyright Page Table of Contents Notes on Contributors Acknowledgments Select abbreviations Part I International constitutionalisation as a claim 1 Constitutionalisation: a new philosophy of international law? 1 Introduction: is constitutionalisation in need of revision? 2 Constitutionalisation, constitution and sovereignty in international law 3 Connotations of constitutionalisation in international law 4 Constitutionalisation and the transformation of international law 5 Fuller vs. Hart: constitutionalisation as the systematisation of international law 6 Towards a philosophy of the constitutionalisation of international law? 7 Conclusion: constitutionalisation as the new philosophy for international law 2 From the internationalisation of national constitutions to the “constitutionalisation” of international law: the role of human rights 1 The link between international law’s humanisation and constitutionalisation, and the chapter’s scope 2 Critiquing the constitutionalisation of international law 3 Linking human rights to grand narratives of the international legal order 4 The specialty of human rights: the impact of the internationalisation of national constitutions on the system of international law 4.1 Collective enforcement at the decentralised level for the protection of common interests and values 4.2 Due diligence and the responsibility of states to protect 5 Conclusion 3 International constitutionalism, language in legal discourse, and the functions of international law scholarship 1 Introduction 2 An outline of the doctrine of international constitutionalism 3 International constitutionalism and the role of language and ‘cohesive élite’ of scholars 4 The sources of scepticism to constitutionalisation of international law and the constitutionalist theory of international law 5 Conclusions 4 The creeping constitutionalisation and fragmentation of international law: from ‘constitutional’ to ‘consistent’ interpretation 1 Introduction 2 Instances of ‘constitutional’ interpretation in international law, as applied to the UN charter 3 Conflicting constitutional regimes in international law and interpretative tools for avoiding fragmentation: from ‘constitutional'... 4 From ‘systemic’ to ‘consistent’ interpretation 4.1 The relationship between the UN Charter and the secondary norms on international responsibility 4.2 The relationship between the UN Charter and the European Convention on Human Rights 5 Conclusions Part II Fragmentation of international law as a challenge to its constitutionalisation 5 The paradoxes of fragmentation: does regional constitutionalisation constitute a fragmentation threat to the international... 1 Introduction 2 Regional constitutional systems and the international legal order 3 State acts in UN-authorised operations before the ECtHR: from deference to control 3.1 The issue of attribution and jurisdiction 3.2 Harmonious interpretation of international obligations 4 The shift towards full review over acts of states adopted in application of UNSC resolutions 5 The influence of the case-law on the UN sanctions regime 6 Conclusion 6 International constitutionalisation of protection of privacy on the internet: the Google case example 1 Introduction 2 The issue of privacy protection in the debate on unification and fragmentation of international law 3 The privacy versus data protection in EU law 4 Google case as an example of universal judicial influence on solutions worldwide 5 Right to be forgotten applied worldwide? 6 Conclusions 7 The “revival” of sovereignty via the complementarity regime and the “doctrinal” idea of responsibility to protect; what about... 1 Some critical thoughts on the Rome Statute and RtP 2 Introduction to the concept of the responsibility to protect 3 What use for the sovereignty then? 8 Fragmentation of the law of targeting: a comfortable excuse or a dangerous trap? 1 Introduction 2 Fragmentation 3 A trap or an excuse 4 Constitutionalisation or unification 5 Conclusions 9 The Rome Statute and the debate surrounding the constitutionalisation, fragmentation and pluralisation of international criminal law 1 Introduction 2 The Rome Statute and ICC’s competences 3 Constitutionalisation and constitutional features of the Rome Statute 4 Fragmentation as a risk to the unity of international criminal law? 5 Legal pluralism and its usefulness in describing the ICC’s regime 6 “One ring to rule them all” or three pairs of glasses? Conclusions Part III Constitutionalisation through fragmentation 10 Justifying ‘fragmentation’ and constitutional reforms of international law in terms of justice, human rights and... 1 ‘Constitutionalisation’ through ‘fragmentation’ of legal systems 2 ‘Fragmentation’ and ‘constitutionalisation’ in IEL and adjudication 2.1 Competing conceptions, fragmentation and ‘constitutionalisation’ of IEL 2.1.1 IEL as international order protected by power politics (e.g. GATT 1947) 2.1.2 ‘Constitutionalisation’ of GATT law through parliamentary ratification and implementation of the Kennedy... 2.1.3 Multilevel constitutionalisation of regional free trade agreements in Europe 2.1.4 ‘Constitutional justice’ and ‘commutative justice’ in WTO law? 2.1.5 ‘Cosmopolitan justice regimes’ in commercial and investment law 2.2 ‘Struggles for justice’ in international treaty interpretation and adjudication 3 Interpreting and justifying ‘incomplete treaties’ and ‘indeterminate IEL rules’ in conformity with ‘principles of justice’... 3.1 Citizen-oriented ‘proportionality balancing’ in investor-state arbitration 3.2 Citizen-oriented ‘proportionality balancing’ in trade adjudication 3.3 Protection of human rights in multilevel economic adjudication 4 Conclusions 11 A constitutionalised legal order: exploring the role of the World Heritage Convention (1972) 1 Introduction 2 Arguments on the fragmentation of cultural heritage law 3 World heritage as a legal concept 4 World heritage as a universal value 4.1 Practices 4.2 Doctrinal responses 5 Conclusions 12 Constitutionalisation through fragmented adjudication? 1 Introduction 2 Procedural norms and judicial practices 2.1 Allocation of the burden of proof in discrimination cases 2.2 Allocation of the burden of proof with regard to the precautionary principle 3 Substantive norms and judicial practices 3.1 Water rights 3.2 Genocide and persecution: identification of members of the protected group 4 Institutional divergence and substantive convergence? 4.1 Relationship between proliferation and substantive fragmentation/constitutionalisation 4.2 Convergence/divergence and global justice 13 From fragmentation to coherence: a constitutionalist take on the trade and public health debates 1 Introduction 2 The tension between trade interests and public health objectives: regime collision 3 Reconciling trade interests and public health concerns 3.1 Interpretative approach 3.2 Legislative approach 3.3 Human rights approach 3.4 Principle of global subsidiarity 4 From fragmentation to coherence: the quest for global constitutional order 6 Conclusion 14 Access to environmental justice for NGOs: interplay between the Aarhus Convention, the EU Lisbon Treaty and the... 1 Introduction 2 The pillar of access to justice of the Aarhus Convention 3 Aarhus – EU: access to environmental justice for NGOs at EU courts 3.1 The Aarhus Regulation: the possibility for NGOs to request for internal review 3.2 Legal standing of NGOs in judicial review procedure at the level of EU courts: individually and directly... 3.3 Legal standing post – Lisbon: the third limb of Article 263(4) TFEU 3.4 Mapping the interaction between the ACCC and the CJEU on access to justice for NGOs at the level of the EU 3.5 Reflecting on the Aarhus – EU interaction 3.6 European Court of Human Rights’ approach towards Aarhus 3.7 Access to environmental justice under Article 6 ECHR 3.8 A third layer on the way: the limited review of the ECtHR of the EU 4 Concluding: situating the debate on the access to environmental justice for NGOs in terms of a process towards... 15 The reconciliatory approach: how multilateral environmental agreements can harmonise international legal obligations 1 Introduction 2 Multilateral Environmental Agreements and limits of the traditional approaches 3 Elements of environmental treaties supporting reconciliatory tendencies 3.1 First element: principles and open-ended provisions 3.2 Second element: treaty institutions 3.3 Third element: non-confrontational compliance mechanisms 3.4 Fourth element: institutional cooperation 4 Opportunities in the application of environmental treaties: the example of the World Heritage Convention 4.1 Background to the Congolese armed conflicts 4.2 Applying the World Heritage Convention and international humanitarian law 4.3 Applying the World Heritage Convention and the UN Charter obligations 5 The significance of a reconciliatory approach 6 Conclusions Index