Global Constitutionalism _ Public International Law.

Hello everybody and welcome back to our studies in public international law. This lesson is going to be continuing an examination of some of the historical and theoretical approaches to the subject of international law before we move on to thinking about the substantive content, things like the sources of international law and the law of immunities, sovereignty and jurisdiction. I want to spend this lecture thinking about global constitutionalism, a theoretical approach that can basically traverse both international law and international relations, and we'll think about some of the key areas and insights with regard to the study of global constitutionalism as an analytical framework, as a normative context, as something that potentially exists in certain circumstances, thinking about it from the perspective of various different case studies. More specifically then in this lesson we will talk about what global constitutionalism actually is, define it, give it some definitions, give it some basic qualities, thinking about the kind of drivers of global constitutionalism, the intellectual drivers, the kinds of ideas that promote global constitutionalism and the effects that potentially promote global constitutionalism, some of the things that actually happen that might provide us with insights into if global constitutionalism is occurring. I.e. if constitutionalization is occurring. And then we will think about its normative content before thinking about what is known as micro constitutionalism in international law, looking at where potentially there are regional approaches to constitutionalization that can be seen in various numbers of different case studies. We will provide with two major case studies, the first being the World Trade Organization, the second being the European Union, as the two cases of micro constitutionalism. So speaking broadly, if we quickly introduce the study, the subject of global constitutionalism, we could define, as Tully et al. does, global constitutionalism as referring to the global field of diverse formal and informal assemblages of laws and governance norms and actors that exhibit constitutional qualities. And it is really here that we can suggest that constitutionalism, global constitutionalism, refers broadly to the view that there are constitutional type norms, constitutional qualities and structures and principles that may begin to emerge, that are either beginning to emerge or maybe they ought to emerge on a transnational or global level. So rather than the basic ideas of constitutional principles governing domestically between states, or as in interstates, sorry, as in within states, so individuals and institutions within a country being governed by basic principles of constitutional law, to what extent is this beginning to take shape or to what extent should this take shape at a global level between states within public international law, looking at the ways in which constitutional principles could govern relations among states, international organisations and individuals and other actors that exist in this broader sphere. According to Tully, these kinds of constitutional qualities that he cites here in this quotation, this exhibiting of constitutional qualities, these include the separation and distribution of powers, the idea of rights and offices, the ideas of human rights and principles of rights, as well as secondary rules that constitute and limit primary rules, courts and governments. So there's quite a lot that we can think about as trying to identify ideas of constitutionalism within the international relations sphere or the international legal sphere. So we can see that there are various different ways in which we can emphasise that global constitutionalism should also be not defined as a world constitution. It does not necessarily mean that there is some single unified document that is the world constitution. Some have suggested that in the past, if there is to be a world constitution, it could be something like the UN Charter. And while the UN Charter is almost like a broad document that binds most, if not all, states, any state that is a part of the United Nations, at least, we wouldn't call it a constitution in a broad sense. It doesn't exhibit the kind of qualities that Tully, for example, identifies as being constitutional qualities. Instead, then, global constitutionalism as a research agenda, as a normative project, or as just a descriptive framework, as a framework of how we can describe the world, views global governance as undergoing, or as capable of undergoing, or as ought to be undergoing, a sense of constitutionalisation, an idea that we embed constitutional-type structures beyond the nation state. It's a possible descriptive theory, a normative theory, in international relations and international legal scholarship. And so it begs a number of questions. Can principles of constitutionalism meaningfully apply beyond the confines of the state? That's an interesting question. Another interesting question, if so, if it can, what does this say about our theoretical understanding of both international law and international relations? What does it say about the way, the things that we study as international lawyers, if this is a type of thing that could meaningfully happen? And then a third question that I haven't included on this slide, but that we will talk about in a second, is to what extent ought this be the case? To what extent ought to be the case that if principles of constitutionalism can meaningfully apply beyond the confines of the state, if this is the case, to what extent should these kinds of principles of constitutionalism meaningfully apply, should be able to apply and should apply beyond that of the confines of the state? So a number of pressures and developments within both international law and international relations have given rise to this concept of global constitutionalism. We could think firstly about things like globalization, something that we're going to touch on more in more detail when we look at international economic law in a series of lectures on their own that I've sort of been working on in the background, but things like transnational flows of capital, of people, of information and of goods, the free movement of the mode and the means of production, things like capital, things like people, like labor, for example, and goods and services and investment, all really undermine this idea that there are neat territorial boundaries that we call sovereign states. The nation-state as it exists is not as clearly defined, or at least it does not matter as much as it used to, given the fact that globalization has meant that we are all more interconnected. Crossing state boundaries is a lot easier to achieve these days than it was or might have been 100 years ago. It's important to note that globalization can be just defined as the world shrinking, the world getting smaller, and by that we mean not necessarily physically the world getting smaller, but more the fact that because things are easier to reach, because things are easier to get to, because there is transnational flows of all of these different things, the world is theoretically or perceptively a smaller place compared to where it used to be. This raises governance challenges that cross borders and really strain an idea of international law as a state-centric model. At the level of international law, we can say that the institutionalization of various regimes of international law have made it more plausible that constitutionalization could take place. So things like the World Trade Organization, that we'll get to later on in this lesson, but other economic institutions like the International Monetary Fund, or political institutions like the United Nations, or regional institutions like the European Union, or the African Union, all have structures that resemble, in some regards and in some areas, constitutions in some respects. We'll see where this goes when we look at the ideas of micro-constitutionalism with the WTO and the European Union individually, but this does prompt the question that do we suggest that these kinds of institutions are proto-constitutional or micro-constitutional in the sense that they provide insight into a constitutional regime that fundamentally crosses state boundaries, but that nevertheless would not be regarded as a world constitution in any kind of specific regard. So for example, the World Trade Organization, if you are going to buy this idea that the World Trade Organization is a constitutional institution and it exhibits constitutional features, it's global in terms of the member states that are a party to this organization, but it is limited in the area that it regulates. It's limited to regulating international trade and trading goods and services and IP rules and things like that. Similarly, the European Union is much broader in its mandate. It covers things like human rights, the single market, which is economic regulation, political issues, agricultural issues, energy issues, defense issues, crime issues, but it is regional. It is limited to the continent of Europe. Something to bear in mind. And then the final driver of constitutionalism, global constitutionalism, is the recognition of the existence that there are global problems that will likely require a global response. There are some problems that we are facing right now that cannot be solved by mere reference to a single nation state. We cannot look to a single nation state to solve some global problems. So things like, for example, climate change. This necessarily transcends the states. The idea of global warming, the idea of carbon being dumped into the atmosphere or pollution in the ocean does not matter, does not care for itself, does not care for the existence of boundaries and states. You can't have climate change be limited to just the nation state in which it originates. So if one country, for example, is contributing to climate change and another country is trying to reduce their carbon footprint, it doesn't matter to the overall scheme of things that there are nation states that are individual. These are global issues. Other things that we can think of are global health pandemics. Of course, COVID-19 and the 2020 pandemic is an illustrative example that this was a global issue that required a global response. It didn't get a global response in some regards, but it's an issue that could not have been confined to just China because otherwise there would have been a global pandemic. There would have been a nationwide pandemic in China. You can also think about how when human rights abuses begin to cross borders or armed conflicts that start to cross borders as well. And so one of the arguments that thinks about driving global constitutionalism is that a purely state-centric legal regime is not sufficient to solve the problems that are really most prevalent in the international community. The biggest problem in the world at the moment in international law and international relations, in my opinion, at least, is climate change and health pandemics and human rights abuses. These things can't be checked. These things can't be regulated by simple reference to the nation state. It has to require the integration of and the cooperation of all nation states across the world. And so the result of this is that as we look at these kinds of drivers, global constitutionalism is born of the recognition that globalization challenges state sovereignty. The institutionalization of these regimes challenges the basic idea that states are the primary actors in international law, even if they are necessarily the case for the time being, and major problems cannot be solved without reference to these global institutions and these global solutions. So with that in mind, then, let's think about the normative considerations. What exactly do proponents of global constitutionalism see as its normative content? What are the key principles? What are the fundamental drivers? What are the fundamental ideas associated with the normative considerations? And fundamentally, global constitutionalism will firstly emphasize human rights as central to their featured understanding of this idea of a global constitution. Fundamentally, okay, if we think about a constitution from a domestic standpoint, if you have someone who has studied law in a domestic framework at the US constitution, for example, or the UK constitution, one of the major aspects of this study of the constitution is this idea of human rights and civil liberties. An individual is more than just the subject of states. These rights include political rights. These rights include socioeconomic rights and broader group rights. And so does this suggest, then, that there is a comparison to be made between the individual in human rights in a domestic setting or the individual in human rights in an international legal setting? Well, luckily for us, a couple of years ago, an entire book was written on this issue of individuals and their relationship with international law that was edited by Sparks and Peters. The individual in international law actually came out last year. And one of the chapters concerns global constitutionalism, where they say, quote, global constitutionalism, however, does not presume an a priori that the treatment of the individual at the international level mirrors the treatment of the individual in domestic constitutional law. Instead, it invites a reflective adaptation of constitutionalism to the global sphere. This provides us with a number of interesting insights, because fundamentally, one of the questions that we will be asking about not just constitutionalism, but also about other sort of traditionally domestic issues, theoretical and philosophical issues at a domestic setting, being internationalized. So things like global justice, for example. Does it make sense that we can just take and apply the basic principles of constitutionalism or justice in a domestic setting and just internationalize them? Just say, well, we'll do this, but we'll do it between states. Does that make sense as a basic normative framework? And we'll get to looking at that in future lessons on global justice, looking at the ways in which people like, for example, John Rawls in Law of Peoples takes some of the principles that he establishes in a theory of justice and political liberalism and just basically applies them to an international sphere and how movements like cosmopolitanism challenges that basic framework. But a similar thing could be said about this. Can we just take the basic ideas of a constitution in a domestic setting and say, well, let's just apply them to the global sphere? Well, according to Kali here, instead, what we ought to be doing is inviting ourselves to have a reflective adaptation to think about from a more reflective perspective and thinking about how we can adapt the basic principles of the constitution and basic principles of constitutionalism to a global sphere. We shouldn't necessarily be thinking about a one-to-one comparison per se. Other normative considerations might include things like the rule of law. Institutions and decisions beyond the state ought to operate under the basic principle of the law. They should not be confined to this idea of arbitrary power. There should be some kind of a broader conversation about how the rule of law in a domestic setting, how law is made domestically, should be applied in a similar sense to how law is made in an international setting. This provides with it a number of additional considerations, things like the separation of powers. At the global level, there ought to be powers separated and distributed. Institutions should be accountable. They may also need to be the requirement for certain checks and balances between institutions at a global level. Authority ought to be constrained and structured such that institutions should be held to account. And then a final one is this idea of democracy, global democracy. Justice is achieved through democracy and democracy as a key pillar of global constitutionalism, emphasizing that even supra-state institutions should be legitimate. They should be subject to contestation and they should even be participatory in nature. And this would, of course, suggest that we're not thinking about technocratic rule. We're not thinking about autocrats. We're not talking about dictatorship at a global level. We're talking instead about the idea of democracy. Now, constitutionalism also implies that there are more than mere norms, institutions, procedures and mechanisms that matter. In fact, global governance is increasingly institutionalized, suggests that there is an element of constitutionalization. So we'll get to that in a second. But fundamentally, what are the analytical considerations? What are the descriptive considerations that we can take into account? Well, fundamentally, I want to invite you to answer this question. To what extent can we say that there is constitutionalization taking place? That's the question I would like to ask. Is there constitutionalization going on at the global level? And I want to begin by looking at a paper by Anne Peters on global constitutionalism, a really, really famous paper, in fact, that suggests that parts of international law have recently evolved in a way that can be described and interpreted as constitutionalization. Constitutionalization in this sense is an evolution from an international order based on some organizing principles such as state sovereignty and consensualism to an international legal order which acknowledges and has creatively appropriated principles and values of constitutionalism. So we think about the basic conclusion here that we saw that is being cited here by Anne Peters, there is constitutionalization taking place, that there is, and we can define this as an international legal order, which is both acknowledging and is appropriating principles and values that are constitutional in nature. So just like when we looked on a previous slide that we might not necessarily just copy and paste constitutional principles into the international sphere from a domestic standpoint, we might appropriate principles, we might think about ways in which we can apply such principles in the international sphere in ways that might be different to if we were applying principles in a domestic sphere. There are things that we should consider here and Anne Peters really acknowledges this point, acknowledges that there are appropriation that needs to take place. There are analogies that might need to be drawn when thinking about applying constitutional principles from the domestic to the international. And so this question is a very interesting one and it brings us from this point to the next point that we're going to get to in a second. But the question is, is there constitutionalization going on? And by constitutionalization, we mean the slow potentially, the potentially slow transition from whatever international law was or whatever international relations was to there being constitutional principles imbued within the global system. Okay, so constitutionalization is a process, if you will, towards global constitutionalism. It is a transformation towards global constitutionalism, the embedding of constitutional principles in international institutions. If this is the case, if constitutionalization is taking place on a global level, which global institutions exhibit these constitutional features? Is it permeating all aspects of international law or is it just permeating certain parts of international law? That's another question that we could ask. And then finally, could we see examples of these micro areas of constitutionalism in specific regional aspects of international law? And really that invites us to think about the idea of micro constitutionalism, which I'll get to in a second. But fundamentally, the descriptive analytical question then is asking which global institutions, which regimes, which norms exhibit constitutionalist features? Does the WTO exhibit constitutionalist features? Does the EU or human rights systems exhibit constitutional features? I'll get to why I use these examples in a second. But the next question or the first question, as distinct from this analytical consideration, is should global governance be structured along constitutional lines? Is this a good way in which we can think about and frame global governance in the modern era? Should we aim for global constitutionalism? Should this be like the thing that we're going towards? If we want to reform international law, if we want to reform the international legal system, should we do so in a way that takes us closer towards these constitutional ideas? If we are sort of slowly going down that path anyway, if constitutionalization is slowly taking place in various different institutions, should we should we push back against it? Or should we just flow along that river along with them and hope that this and see why and see where that actually goes? These are all questions that really invite us to have to think about specific examples. And so specific examples, we're going to begin with the World Trade Organization. So the World Trade Organization is the one I'm most familiar with, at least, and will be the first issue and the first concept of micro-constitutionalism. And the first thing I want to really get down very quickly is asking what we mean in this context by micro-constitutionalism. Well, it can be understood as global constitutionalism, but just viewed in a very narrow context in rather than thinking about global constitutionalism with regard to international law writ large, thinking about global constitutionalism as per a particular international regime or a particular regional regime, such that these we can think about as sort of microcosms, as basic case studies in constitutionalism in international law, and think about how this has applied and how this has worked. And that can maybe frame and inform not only our normative considerations that we looked at on previous slides, but it can also inform our actual practical perspectives on how we might want to reform international legal systems and international institutions to better fit these kinds of global constitutions or to go away from these ideas of global constitutions. So these institutions, then, if we're thinking and looking for micro-constitutionalism and micro-constitutionalization, we will be looking for a number of different norms and features that are constitutional in nature. So we might be looking for things that exhibit rule of law. We might be looking for things that exhibit hierarchical norms, specialised dispute settlements, institutional architecture, and checks and balances, or maybe even the rights and obligations of individual subjects. In short, a regime, a regional regime or a specific particular international regime, functions in something like a way a constitution functions for a domestic polity, but on an international scale. So the first point, of course, is the WTO is, in the scholarship, one of those areas in which we can see a lot of scholarship is dedicated to thinking about the WTO from a constitutional perspective. And why is that the case, then? Well, let's just think about the WTO in more detail. The WTO is, of course, an institution that does have institutional architecture in the sense that, established in 1994 by the Marrakesh Agreement, it succeeded the more ethereal and more flimsy General Agreement on Tariffs and Trade that had existed all the way since 1947. Now, the General Agreement on Tariffs and Trade, interestingly, had been designed as a temporary measure to incorporate basic principles of international trade law, while a more institutionalised international trade organisation would be established. The unfortunate aspect of this is that the ITO, as it would have been called, the International Trade Organisation, that was elucidated in the Havana Charter just never came to fruition. And there are a variety of different reasons why this was the case. There are some domestic reasons from the perspective of the United States. There was a change in Congress as the result of the midterms, and that meant that they were less inclined to be on board with this new project of an international organisation. There was just the broader conversations about the Cold War. Things became a little bit more closed off after the end of the Second World War. There was a sort of boom and explosion in international law in the sort of late 40s, early 50s, and then it sort of began to close off as the Cold War began to take shape. And there was also this idea that, well, if we have a General Agreement on Tariffs and Trade that does basically all the main things that we want, why do we need to have an ITO? Why do we need to grow this institution even more? So that's why the ITO never fully came to fruition. But this Marrakesh Agreement establishes a World Trade Organisation. The World Trade Organisation, like it says here, has a formal structure. It has a Ministerial Conference, it has a General Council, it has a number of councils and committees, and it also has a Dispute Settlement Body that is elucidated by the Dispute Settlement Understanding, the DSU. And so from this perspective then, with an institutional architecture and what is sometimes praised as the, or at least used to be praised as the crown, dueling the crown of the WTO, we have a Dispute Settlement System. We have a method and a mechanism for adjudication. And so fundamentally we can think about how this might show and exhibit examples of micro-constitutionalism. The WTO Dispute Settlement System is often praised for being one of the most advanced in international law. If you compare, for example, prior to 2016, if you compare the number of cases that had been resolved and had been settled and disputed at the WTO versus the majority of all the other International Dispute Settlement Organisations, so things like ICSID, ONCETRAL, the Law of the Sea Tribunal, the ICJ, the ICC, the WTO has a ridiculous number of resolved cases, a ridiculous number of cases. They were a real judicial institution. I'm talking in the past tense because as students who will study international trade law will know that the Dispute Settlement System is not exactly what it used to be for a number of reasons, cough, cough, United States. And so we can see here then that there is the exhibiting of advanced principles of the features of the rule of law. You have binding rules. You had timetables. You had an appellate review. There was an entire review process where you had decisions that would be passed down by panels that would then go to the WTO's appellate body. And so there was a way to appeal a decision. And so, for example, we can see that there are constitutional aspects associated with this particular institution. Jeffrey Dunoff, for example, says that in recent years, constitutional discourse has moved to the center of academic writing about the WTO. There has been a shift in scholarship, at least in 2006, there was a shift in scholarship towards thinking about the WTO as a constitutional institution. He goes on to say that it is tempting to locate the constitutional turn in trade scholarship within the context of the turn in constitutionalism in international law generally. But there is an immediate and dramatic contrast between the WTO context and those mentioned above. In the WTO, there has not been and is not currently an ongoing political process of creating a constitutional document, nor is there any likelihood of such a process in the foreseeable future. There is no constitutional courts, no constitutional convention, no constitutional drafting process, no readily identifiable constitutional moment. Now, you can take this quote to mean a couple of things. I mean, I invite you, of course, to read the entire paper, but you can take this particular quote to mean a couple of things. Firstly, you could be thinking about basically reining back some of the basic principles of or the ideas of global constitution. You might also make a clear consideration that if there aren't any kinds of clear impetus processes for which there has been a constitutionalization of the WTO, then what are the things that are driving academic writing about constitutionalism with regard to the WTO? What are other features and other principles that we could look at that exhibit constitutional ideas? Continuing on, with more academic writing, Trachtman suggests that assuming that states act with intentionality and accuracy in their establishment of organizational features, the cause of constitutionalization is the desire to affect the consequences of constitutionalization. So the practical focus here is on political consequences of constitutionalization in and connection with the WTO. So this is thinking specifically about the ideas of political consequences associated with constitutionalization, with regard specifically to the WTO, as part of that book chapter there. So with that regard then, what else can we think about? Well, another constitutional feature is the articulation of substantive norms that bind actors and may provide rights or duties, whether these rights be indirect or direct, and may lend priority to certain values. So norms, rights, and duties can and do exist quite substantially in the World Trade Organization, and we can see them through principles like that of non-discrimination. Non-discrimination principles in WTO law is elucidated by the Most Favoured Nations Treatment, Article 1 of the GATT. So the Most Favoured Nations Treatment essentially refers to the imposition of tariffs on various different countries. And it suggests that if you have two products that are like products, that are similar products that come from two different countries, if you're going to raise or lower the tariffs on one, you have to raise or lower the tariffs on the other. You have to apply the exact same rules of tariffs on one as you do the other. You can't do preferential trading, and that is what would result in a violation of the Most Favoured Nations Treatment. You can't favour nations. Article 3 applies basically that same principle, but from the perspective of instead of it being two countries, it is a country you're importing goods from versus your domestic production. So you can't favour your own domestic production by raising tariffs on like products, on similar products that are being imported from other countries. Now, you might notice that in recent times, in recent months, the current presidential administration or the current Trump administration has violated both of these principles and a variety of other principles of the World Trade Organization through the imposition of tariffs at will. But we won't get to that in this lesson. There are also rules on transparency, obligations, prohibition on certain trade barriers, and this provides us with a good amount of information about the ways in which norms are entrenched in WTO law. Additionally, there are exceptions to these norms. So the WTO incorporates exceptions, exceptions as part of Article 20 of the GATT, which allows for policy space with regards to the environment, with regards to public health, and with regards to public morals. In constitutional terms, if we were to sort of put on our constitutional lenses for a second and think about these exceptions in constitutional language, we might say it shows a balance of norms and rights as well as of norms and duties. And some scholars even emphasize that WTO's norm generation has become even more ambitious. We can see that authors argue that integrating human rights and labor standards and the environment and agricultural standards has now become part and an ever-increasing part of the WTO's process. Now, this has been hampered quite substantially by the sort of deadlock at the Doha rounds of negotiations. But one of the things that we see in the early negotiations of the WTO is that there are compromises about what is incorporated as being part of trade law. So many global north states, for example, had various different desires to incorporate things like intellectual property into the WTO and into WTO regulation. And this was something that was not necessarily favored by global south countries. India especially was particularly not very happy about that. But they sort of made these concessions on the basis that, well, when we get to the Doha rounds of negotiations, we are going to negotiate on things like agriculture. We're going to negotiate on things like investment. We're going to negotiate on things like labor standards and the environment. And then that sort of begins to stall as well. But it does show, at the very least, that international trade is now encompassing a variety of different areas of international law, that we are seeing a crisscrossing of international legal issues like the climate and like labor standards and like human rights and like investment that is becoming ever increasingly a global trade issue, as well as issues in their own right. Thomas Cotillier, for example, makes the point that overall WTO law does not amount to the levels of protection and integration comparable to those of EU law or domestic constitutional law. So Thomas Cotillier is just really putting the restraints on our running to the global constitutionalism argument when it comes to the WTO and saying, basically, well, slow down, OK? There are aspects that are comparable. The basic functions of fundamental rules are comparable. Importantly, they share structural traits with the established principles of domestic constitutional law. But the World Trade Organization isn't by any means the most prevalent and the most successful example of a constitutionalized system in international law. That goes to other institutions. Similarly, Cass delineates, Deborah Cass delineates in Constitutionalization of the World Trade Organization between how the WTO subject as a constitutional question has been delineated between the constitutionalization enthusiasts who, quote, promote institutions, management techniques, rights, discourse and quasi-judicial power to construct a constitution for the WTO and constitutional skeptics who, quote, fear the effect of the phenomenon of that the effect that it is having on the autonomy of states, the capacity of the WTO to consider non-economic and non-free trade goals and democratic processes in the WTO and within the nation state. So the scholarly debate about institutionalization and constitutionalization really is reflected in the fact that there are maybe reasons for and against supporting normatively constitutionalization, supporting a rule towards constitutionalization versus away from it. And so an example can be seen when we think about specifically the sort of quasi-judicial power in constructing the constitution is the institutional design of the panel system in the WTO and the appeal system that has judicial and quasi-judicial authority, giving WTO features of constitutional review, albeit quite limited. We also see that there are dimensions of secondary rules, if we remember back to earlier quotations, rules about how rules are made. So rules about how rules are made, rules about how rules are reviewed and changed that also appear in the WTO. So, for example, negotiation rounds, committees, dispute settlement mechanisms, all reflecting in one way or another a type of constitutionalization structure. Finally, when we look at the WTO, referring again to other elements here, Lawrence makes the point that constitutionalism should be approached not as something that can be measured or assessed empirically, but rather as a discursive contest, a debate in which participants intervene on behalf of a particular understanding of how the system does or should operate. Approaching constitutionalism as a discursive contest adds to the literature by shifting the focus of an analysis of how constitutional talk produces knowledge about WTO and how this knowledge in turn structures perceptions about the way government works and the possibility for action. Slight typo there, of course, that's supposed to say WTO, I missed out the letter W. So really, if we take a quite discursive dimension then, as we've noted here, I'll get to that in a second, but we can see that the WTO sits in a sort of layered constitutional framework. Again, if we've got our constitutional lenses on, like I said just a second ago, members must honour WTO rules but interact with national constitutions. There are regional trade blocs and various other exceptions and other international regimes, so there is a sort of micro-domain that can exist when we think about the constitutional style that continues. What is Jessica Lawrence referring to when we look at this then? This idea of it being discursive and legitimising in terms of its dimension, the idea that referring to constitutionalism shapes how the actors view the regime itself, that almost like a measurement problem in quantum mechanics, almost like a measurement problem in Heisenberg's Uncertainty Principle, that when you view something the wave function collapses, the ways in which we understand and the lenses through which we look at these different institutions can shape how actors within this institution views the regime themselves, and that can shape how actors, including states, their rights and expectations, how they are shaped, even where the regime is not a full constitution. So to what extent has the literature on constitutionalism within the WTO shaped and influenced the ways in which states, actors, workers within the WTO has viewed themselves, their own role within the regime, as being constitutional in nature. So let's look at this final one then, the European Union, and I want to begin again by looking very quickly at Werner Etal, who make it very, very clear that the European Union is the most successful example of constitutionalisation, with constitutional law now providing the hermeneutics for interpretation and application of EU law, and constitutionalism becoming the dominant language of politics. So if the WTO has attracted a lot of attention about whether or not they're a micro-constitutional regime, whether they have a sort of constitutionalisation features within them, which has happened in the last 10 years or so, then the European Union is just the gold standard in comparison, because the European Union does quite a lot more than the WTO. So really, of course, we can see that the term micro-constitutionalisation or micro-constitutionalism emphasises that this is not a full state constitution, but it is a regime with quasi-constitutional features. So to what extent does the European Union have quasi-constitutional features? How can we view the European Union as a constitutional order? Well, in terms of its constitutional architecture, the European Union's legal order is founded on a number of international treaties, two of which are, of course, the Treaty on the Functioning of the European Union and the Treaty on European Union. While these are treaties of international law, scholarship has noted that they have developed constitutional attributes over time. There are various different authors and writers who have talked about the fact that, on their face and on paper, if you were going to write about them, they are treaties in the basic sense of international law, but they have constitutional attributes that have developed over many years as we've gone from the idea of the European community to the idea of the European Union. We can see that these treaties establish various different institutions that also make law. These institutions include the Commission, the Parliament, the Council, the Council of European Union, the European Council and the Court of Justice of the EU as well. This institutional architecture, then, resembles in a limited way, albeit in fact a less limited way than the WTO, the idea of the separation of powers that you might see in a domestic constitutional system. So, when we looked earlier on at the sort of normative features of if constitutionalisation is happening, what would it look like? One of the things that we noted was the example of separation of powers and we also noted Elections to the European Parliament happen at an individual level. The European Commission and the councils and all these different kinds of institutions are regulated on the basis of membership being part of the heads of states of member states, as well as the key ministers of states in various different areas of policy. So, there's a sort of rotational feature when we think about some of these institutions where, throughout various stages of the year, you have maybe agriculture being the major issue or maybe the economy, and in which case the secretaries of state for the economy or the secretary of states for agriculture and the environment take precedent in the European Council, I believe. And so, fundamentally, we have various different distinct institutions that do have democratic features on the one hand, but they also have separation of powers features on the other. And then, finally, there are norms and principles. Similarly to that of the WTO, there are norms and principles. So, things like competence and conferral from member states to the supranational institution. The EU does act only within the competences that are conferred onto it by the member states, but we can view this, again, as analogous to the constitutional limitation on power. Again, if we're looking at these institutions through a lens that is constitutionalization, if you will, trying to find constitutionalization where we can see it, that is an example, that's an illustration of that. Let's dig a little bit deeper, then, and look at some EU jurisprudence. So, one element of EU law that is foundational and had to be foundational in order for it to work as an institution is that EU law has primacy over that of domestic law, okay? So, the Court of Justice of the European Union has held, on many occasions, that EU law prevails over conflicting national law. So, if you have an EU law and you have a national law and the national law contradicts the EU law, it's the EU law that takes precedent. Very simple. You couldn't have a system that existed any other way because that would be a system in which you basically don't have a unified organization. You'd have to rely on the goodwill of states to agree to organize in a unified manner, which would render the EU far less powerful than it actually is. This, in many instances, can also include national constitutions. The doctrine of supremacy or primacy is a core feature of this constitutional-type order, and an additional feature of this is the doctrine of direct effect. So, not only does EU law prevail over conflicting national law, but individual people, individuals and organizations that are part of a member state of the European Union, can be able to sue to enforce EU law in the domestic legal system. So, prior to Brexit and prior to us leaving the European Union, in the UK at least, if I had a complaint, let's say, that some part of EU law or some part of an EU directive or an EU treaty was not being enforced, I could personally sue the government. I could personally sue the government or government akin institutions to ensure that those principles are in fact upheld in a domestic legal system. This transfers then what started as an interstate treaty into rights for individuals that exist now within the member states, and it supports the constitutional character again of the legal order. What might then be the most prevalent example of constitutionalism in the European Union is the Fundamental Rights of the European Union, the Charter of Fundamental Rights of the European Union, which provides a catalogue of rights which EU institutions and member states must uphold. Legal effect is given as late as the Lisbon Treaty in 2009, and it provides a catalogue of rights, as I've just mentioned. Civil rights, political rights, social rights, economic rights, which EU institutions and member states, when implementing the EU law, must uphold. This is the classic elucidation of the EU as a constitutional order, because it's an example of when we think about what a constitution does, it protects individuals against arbitrary authority of the state. That's one of the things, when we go and study constitutional theory, one of the we think about is that exact rule and that exact principle, and so human rights and civil liberties factors very heavily into that consideration. And so the existence of a Charter of Fundamental Rights is a classic constitutional feature. The EU's regime then binds not simply states, but also institutions and individuals in a rights-protected framework, and we can see that this results in EU administrative law being increasingly constitutionalized by reference to this rights framework. Wollenschlager makes a very important point that constitutionalization, with regards to this particular rule, constitutes a common phenomenon of European administrative legal orders, and also EU administrative law is increasingly influenced by its constitutional framework, notably after the entry into force of the EU Charter of Fundamental Rights, explicitly guaranteeing a right of good administration. So this is, of course, the review of European administrative law, focusing a little bit more on the administrative side of constitutional administrative law, but it's still fundamentally making a similar point that, at least from their perspective, when we're thinking about administration, there is still an increasing influence of the European Union by its own constitutional framework, notably as the result of this Charter of Fundamental Rights. And so fundamentally we can see that, through this basic principle then, the European Union plays a very key role in constitutionalization, and specifically the European Court of Justice, the ECHR, the CJEU, plays a central role in providing this. It interprets EU law, it ensures that there is a uniform effect to EU law, it enforces treaty obligations, it is sort of seen as the guardian of EU law, it upholds the basic principles, and it resembles a constitutional court that might be seen in the state, for example. If we notice, for example, in Moser and Rettberger's article on the Court of Justice of the European Union, the quote, "...quasi-federal EU polity nowadays comprises a highly institutionalized legal system based on judicial review and legal protection. It is flanked by a system of democratic scrutiny and parliamentary oversight, chiefly exercised through the European Parliament, and it entails governance standards to ensure inter alia decision-making, transparency, and accountability. In more recent times, this triad of constitutionalization has come under pressure from different corners." I'll get to that second point in a second, but fundamentally, the first part of this paragraph is making very clear that throughout all of these different institutions, you have a sort of what they describe as a triad of constitutionalization, a quasi-federal EU polity, highly institutionalized legal system based on judicial review and legal protection as elucidated through the CJEU, democratic scrutiny and parliamentary oversight as exercised through the European Parliament, and decision-making transparency and accountability. Next to the normative criticism of over-constitutionalization, perversive crisis decision-making has come to challenge constitutionalization patterns, endangering politics of necessity or progressive securitization. This second point, of course, is referencing the changes to, and also again, the process of scholarship trying to debate the levels of constitutionalism and the regulation of constitutionalism, but they make a very important point that these are strengthening points towards this idea of a triad of constitutionalization. We can see the EU's secondary law, their regulations and their directives, and the processes for adopting these rules reflect institutional rulemaking and review. The EU has mechanisms for oversight. There is a European Ombudsman, for example, there is European Court of Auditors, there is a European Data Protection Supervisor, all of which are not purely trade or economic agencies, but they sometimes even reflect a constitutional style. A final thing I want to mention in this lecture, then, is looking at an illustrative example of a case. So, this is a case from the European Court of Justice. I might go back and just have a look at some other elements just before we finish as well, but in this case, fundamentally, the Court of Justice of the European Union examined whether the establishment of the European Stability Mechanism, the ESM, for euro area states was compatible with the competence allocation that you find in the Treaty on the Functioning of the European Union. The Court, in this decision, held that the ESM was within the EU law framework and did not improperly expand the EU competences. The decision for our purposes is not particularly relevant, but the sort of implications of the decision is much more relevant. If you want to know more about basic elements of EU law, go and have a look at our lessons on EU law that have already been made. But fundamentally, this is an example of competence control and competence control decision making of a constitutional kind. The court is overseeing the boundaries of the state's competence, essentially. If we were to just, for a second, think of the EU as a state, we would be looking at the court's judicial review of state competence, of state authority, and that is very constitutional in nature. So, it provides us with a potential interesting feature of the EU as a constitutional order. Now, before we finish then, I want to just very quickly sort of park the brakes a little bit and spend some time thinking about limits, caveats, and critiques. I'll focus on the EU, and if we want to go back and have a look at some of the other aspects, we can look at them individually. I've already noted with quotations, for example, that the WTO represents, in some regards, constitutional features, but then in other regards, not so constitutional features. So, when it comes to the EU, of course, there is no single consolidated constitution for the EU, in the sense of there being one sovereign constitutional document. There's no single text. There was an attempted constitution for Europe, which was in 2005, but this was rejected by referenda in both France and the Netherlands, and these reforms were also effected instead through the Lisbon Treaty. Now, an interesting counterexample of this, you could say, well, there's no constitutional document in the UK, but we still have a constitution, and that might be a valid critique of that particular contestation. Democratic legitimacy also in the EU remains contested. Remember, of course, what Brexit was partially all about, the fact that the EU is not a democratic institution. The democratic warrant of the EU institutions is weaker than you would find in pretty much any other democratic state. So, the extent to which it is a constitution might be seen that the ideas are a little bit weaker, a little bit more vague. Some argue, in fact, that the Lisbon Treaty came at the cost of democracy. Now, again, you could argue against that contestation by making a point that, well, theoretically, the debate then is not necessarily about whether or not it's constitutional or not, it's just about whether or not how democratic it is, just because it's weaker in terms of its democratic legitimacy than other states doesn't necessarily mean it's less of a constitution. I think the United States has a relatively weak democratic mandate and has a very weak sense of democracy. You wouldn't suggest that the United States is any less constitutional than the United Kingdom, unless you might. That is a theoretical perspective some people might have. And then, finally, I would argue that some suggest that quote-unquote constitutional discourse around the EU risks being rhetorical, rather than being fully matched by practice. So, while many features look constitutional, many mechanisms remain very limited. And so, you could argue that the implications that this has for our understanding of international law is that constitutionalization might happen, but it might only happen to a certain extent. If this is the prime, most basic example of constitutionalization, and it's still got very key limitations, then this might have major implications for international law more broadly. But it still nevertheless challenges the traditional international legal paradigm of purely interstate relations without having any kind of constitutional quality. I hope everybody's enjoyed this lecture. I hope you've enjoyed the more theoretical side of international law. The next lecture is going to concern the relationship between international law and international relations scholarship. Before we then move on to two other aspects of theory, we'll talk about global justice in lecture six, and I want to talk about fragmentation in lecture seven, before we then start actually looking at the subject of international law by looking at the sources of international law, statehood, state succession, the relationship between international domestic law, jurisdiction, immunity, and state responsibility, and the future.