The Constitutional Turn in International Relations Theory
Do aspects of constitutionalism require more attention from IR scholars? If yes, why? And what is the theoretical motivation and the conceptual innovation for this turn?
Term Paper 2012 6 Pages
3 The Constitutional Turn in International Relations Theory
The state system is and has been the main point of reference in international relations theory (from here: IR) both for traditional and new approaches (Jackson & Sörensen, 2010). Contemporary debates address the future of the state and whether its central importance in world politics may now be changing due to globalization (ibid.). The resulting emergence of a wide range of non-state actors such as international organizations caused a notable shift of power from the state to the regional or global level. The Kadi Case in 2005 and the military intervention in Libya 2011 demonstrated that e.g. the European Union and the UN now make use of this power in ways that directly affect individual’s decisions. Both cases have shown that more attention is required from IR scholars to “address the coming challenges to fundamental norms that are held as central principles in most contemporary societies among the globe” (Wiener, et al., 2012, pp. 1, 2). The recent constitutional turn in IR theory deals with the shift from globalization towards constitutionalisation and the perceived lack of qualitative constitutional means to bound decisions of non-state actors and ground them in normative roots demonstrating their universal validity (Wiener, et al., 2012, p. 3).
This paper will focus on the theoretical motivation and conceptual innovation of the so called constitutional turn in IR. It will further discuss the turn critically and explain why this turn requires more attention from IR scholars.
3 The Constitutional Turn in International Relations Theory
To provide a basis for the understanding of the constitutional turn it is useful to start with and agree on some definitions related to the topic. Constitutional is deriving from ‘ constitution ’, that is “generally understood as the supreme law of a sovereign state” (Kumm, 2009, p. 258). “International law, on the other hand, is conventionally imagined as the law among states, founded on the consent of states, and addressing questions of foreign affairs” (ibid.) It is further important to distinguish between constitutionalisation and constitutionalism. Whereas c onstitutionalisation describes the process by which institutional arrangements in the non-constitutional global realm take on a constitutional quality (Wiener, et al., 2012, p. 5), constitutionalism is referring to a concept that is dealing with the consequences of globalisation, namely the diffusion of national boarders and the resulting lack of legitimacy within supranational and international organisations. Constitutionalism differs according to time and place and therefore allows the existence of several types of constitutionalisms over time. It can be seen as a product made and remade through on-going debates, reflecting the contested quality of its own norms, rules and principles (Wiener, 2011, p. 216). As heuristic framework it entails meta-theoretical debates on questions such as why a constitution is legitimate and authoritative, and how it should be interpreted as well as a descriptive approach assessing the process of constitutionalisation by which institutional arrangements in the non-constitutional global realm take on a constitutional quality (Wiener, et al., 2012, p. 5; Wiener & Neyer, 2010, p. 217). Constitutionalism can further be distinguished between small-c and big-C constitutionalism. Hereby small-c constitutionalism is applicable beyond the state and enables interplay between institutional and social practices that call for democracy, legitimacy and legality (Kumm, 2009) while big-C constitutionalism refers to the more traditional meaning and deals with basic ideas on the rule of law, justice and participation (Wiener, 2011).
The constitutional turn in IR theory is a quite recent development, much driven forward by the so called Kadi case in 2005 and the military intervention in Libya 2011. In the Kadi case, the European Court of Justice (from here: ECJ) decided that the asset freeze that has been arranged by the UN violated human rights requirements. It is argued that the ECJ has hereby disturbed the international legal system in which the UN was supposed to have the final legal authority (Búrca, 2008). This decision has caused a wave of contestation among scholars from different disciplines, mostly legal scholars but also drew attention of some political scholars who began to ask questions about the (possible and desirable) constitutional quality beyond the state and the legitimacy of such non-state actors. Grainne de Burca for example argued that the Kadi case dramatically raised questions concerning the accountability of the Security Council (ibid.). According to de Burca, the European Court of Human Rights (ECHR) adopted a constitutionalist approach to the international legal order, subordinating itself to the UN Security Council, whilst the European Court of Justice (ECJ) chose a pluralist approach, “treating the EU system and the UN system as separate and parallel regimes without any privileged status” of the UN Charta (Búrca, 2008, p. 52). The ECJ used the Kadi case as occasion to proclaim its autonomic legal order from the international domain and the “primacy of its internal constitutional values over the norms of international law.” (Búrca, 2008, p. 52). Türküler Isiksel on the other hand welcomed the decision of the ECJ in the Kadi case because it “signals a prioritisation of basic rights within the supranational constitutional architectonic” (Isiksel, 2010). Another perspective has been brought forward by Jean Cohen who argues for a constitutional pluralist approach that allows a human rights-oriented constitutionalism to go along with state sovereignty (Cohen, 2010). She wants to “preserve constitutionalism, democracy, self-determination of states and sovereign equality while” (…) redesigning “new individual-oriented normative principles” (Búrca, 2008, p. abstract). The military intervention in Libya in 2011 again raised questions about the legitimacy of the UN Security Council (from here: UN SC). The use of the responsibility to protect (from here: R2P) as justification for the humanitarian intervention caused concerns among both law and political scholars. It was both legal and illegal at the same time (Hurd, 2011). The decision of the UN SC to not intervene in Syria as they did in Libya makes things worse for the application of the concept of R2P. The Syrian case makes it obvious that the national interests within the five permanent members have crucial influence on the decisions made in the UN SC. This leads to further questions concerning its legitimacy and calls for reforms. The implementation of the R2P concept in the UN Charta in 2005 as option rather as obligation additionally demonstrates that
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- University of Hamburg – Institut für Politische Wissenschaft
- Constitutionalism IR; Theorie Kadi Law International Law Recht Internationales Recht Konstitutionalisierung