The Constitutionalization of the International Legal Order

• Published in: Leiden journal of international law 2008-06, Vol.21 (2), p.545-561
• Main Author: BREAU, SUSAN C.
• Format: Article
• Language: English
• Subjects: Constitutional law; Geneva Conventions; Human rights; Humanitarianism; Immunity from prosecution; International law; International relations; Norms; Philosophy; Political power; Prisoners of war & missing in action; Sovereignty; Values; War crimes
• ISSN: 0922-1565; 1478-9698
• DOI: 10.1017/S0922156508005104

A continuing debate within international law research is whether there is an emerging international constitutional order. This journal devoted an issue to this discussion and there have been a number of books and articles written on the subject. Indeed, the philosopher Jürgen Habermas has recently joined the debate by writing an essay entitled (in the English translation) ‘Does the Constitutionalization of International Law Still Have a Chance?’ The essay reminds the reader of constitutionalism's original philosophical roots in Kantian cosmopolitanism. Habermas argues that the world dominated by nation-states ‘is indeed in transition towards the postnational constellation of a global society’. He contrasts this vision with the realist opinion that the taming of political power through law is only possible within a sovereign state and with a more recent view postulating a vision of a liberal world order under the banner of Pax Americana. In support of the Habermas position, it can be argued that as a result of the UN 60th Anniversary Summit's adoption of the international norm of ‘the responsibility to protect’, there is a trend towards constitutional values in our international system. As Anne Peters states, ‘[t]he most fundamental norms might represent global constitutional law.’