Constitutionalism and International Law

Several serious problems plague international law. The conflict between the claims of supremacy of domestic and international law brings with it legal uncertainty. The consensual nature of international law means that states can withdraw from important international commitments at any time, undermining the authority of international law. Due to the lack of rule of law protections for weaker states and individuals, access to courts is uneven and powerful states cannot be held accountable for violations of international law. Ultimately, the weakness of international law undermines the adequate functioning of domestic legal system when rules for peaceful interaction, the protection of basic human rights and the realization of common projects is thwarted by lack of commitment from states. Can this weakness be reduced by a global constitutional agreement? I will argue that it can. A long list of reasons favors a constitutional solution. First, a global constitutional pact could resolve conflicts of jurisdiction between states and international law and create the coherence, stability, determinacy necessary for international law to perform its role properly and to serve as a mediator of peace and protector of human rights. Second, a constitutional pact could create the institutional structure to facilitate the realization of global public goods. Third, constitutionalism is intimately bound with the rule of law ideal, and would strengthen the internal morality of international law, including equality before law and access to courts. Fourth, a global constitution could serve as a pre-commitment mechanism for states, by limiting opt out from rules essential for peace, the protection of human rights, and for the resolution of collective action problems. Finally, it would circumscribe and limit the authority of international law with respect to states and individuals in order to protect a sphere of autonomous decision for states.