Global Constitutionalism and the Path of International Law : Transformation of Law and State in the Globalized World [1 ed.] 9789004313460, 9789004313453

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Global Constitutionalism and the Path of International Law

Constitutional Law Library VOLUME 7

The titles published in this series are listed at brill.com/cll

Global Constitutionalism and the Path of International Law Transformation of Law and State in the Globalized World

By

Surendra Bhandari

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Bhandari, Surendra, author. Title: Global constitutionalism and the path of international law :  transformation of law and state in the globalized world / by Surendra  Bhandari. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Constitutional  law library ; volume 7 | Includes bibliographical references and index. Identifiers: LCCN 2016011513 (print) | LCCN 2016011659 (ebook) | ISBN  9789004313453 (hardback : alk. paper) | ISBN 9789004313460 (e-book) | ISBN  9789004313460 (E-book) Subjects: LCSH: International law. | International law—Developing countries.  | Constitutional law—Philosophy. | Foreign trade regulation. Classification: LCC KZ3410.B47 2016 (print) | LCC KZ3410 (ebook) | DDC  341—dc23 LC record available at http://lccn.loc.gov/2016011513

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1871-4110 isbn 978-90-04-31345-3 (hardback) isbn 978-90-04-31346-0 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

To All Who Have Contributed to the Protection of the Rule of Law and the Promotion of Positivist International Law

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Contents Preface xi Acronyms xxi Table of Cases xxv Table of Statutes xxvii List of Charts xxxiv List of Tables xxxv About the Author xxxvi 1 Global Constitutionalism: Positivism and International Law 1 Summary 1 1.1 Introduction: The Problematic Dynamics 1 1.2 Normative Fluidity of the Three Traditions 7 1.2.1 Instrumentalist Tradition 8 1.2.2 Inter-disciplinarist Tradition 13 1.2.3 A Contested Constitutionalist Tradition 16 1.3 Jus Cogens and the Positivist Explanation of Global Constitutionalism 23 1.3.1 Three Formative Features of Global Constitutionalism 24 1.3.2 Five Modi Operandi of Global Constitutionalism 27 (a) Unity 27 (b) Legality 29 (c) Harmony 30 (d) Hierarchy 32 (e) Convergence 38 1.4 Challenges to Global Constitutionalism 41 1.4.1 Western Bias and Hegemony 41 1.4.2 Defiance of International Law 44 1.4.3 Terrorism 48 1.5 Conclusion 49 2 International Trade Law: Theories and Practices in Negotiations 53 Summary 53 2.1 Why Trade? 53 2.1.1 First Explanation: Peace, Wealth, and Righteousness 55 2.1.2 Second Explanation: Wealth and Advantages 59 2.1.3 Third Explanation: New Trade Theory 65 2.1.4 Fourth Explanation: Welfare-Grundnorm 69

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2.2 Controversies: New and Old, and the Winners and Losers of International Trade 77 2.2.1 The Backlashes 78 2.2.2 The Paybacks 83 2.3 Assessments and Reality Check 85 2.3.1 Conceptual Muddle: WTO is not a Free Trade Institution and the Sole Agency of Globalization 86 2.3.2 Derogations, Divergences, Constructed Advantage, and Asymmetry 88 2.3.3 Domestic Practices 90 2.3.4 Question of Governance 91 2.4 Conclusion 92 3 Making Rules in the WTO: Negotiations From Doha to Bali 94 Summary 94 3. 1 Doha Round at Fourteen Years 94 3.2 Problems of the Doha Round 104 3.2.1 Key Players’ Reluctance to Liberalize Trade 105 3.2.2 Faulty Methodology 111 3.3 Potential Outcomes 115 3.4 The Bali Ministerial and the Post-Bali Developments 118 3.5 Possible Implications 124 3.6 Conclusion 127 4 North-South Controversy: Developed and Developing Countries in the WTO 131 Summary 131 4.1 Introduction 132 4.2 The Fragmented Approach 135 4.3 The Uniformity Approach 143 4.4 Bali Ministerial Decisions on LDCs 149 4.5 Welfare-Grundnorm 152 4.6 Conclusion 158 5 Self-Determination and Minority Rights under International Law 164 Summary 164 5.1 Right to Self-Determination (RSD) 164 5.2 RSD: Internal Autonomy of Groups 167 5.2.1 The UN Declaration on the Rights of Indigenous Peoples 172 5.2.2 RSD and Minority Rights 176

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5.3 IRSD and Its Scope: Empowerment of All Peoples 178 5.3.1 The Scope of IRSD under the UNDRIP 179 5.3.2 Rights over Land and Resources 181 5.3.3 IRSD and Human Rights for All Peoples 184 5.4 Restructuring of the Nepalese State 187 5.4.1 Could Federalism Ensure Autonomy? 190 5.4.2 Federalism as the Solution of Discrimination and Inequality 196 5.4.3 Is Federalism the Natural Political Course for Nepal? 200 5.5 Conclusion 205 6 Human Rights: The Interlocutor of Global Constitutionalism 207 Summary 207 6.1 Introduction 207 6.2 The Genesis and Foundation of Human Rights 212 6.3 International Human Rights Regime 220 6.4 Civil and Political Rights 223 6.5 Economic, Social, and Cultural Rights 231 6.6 CAT and Human Rights 235 6.7 Core Instruments 238 6.8 Implementation of Human Rights Instruments 243 6.8.1 Domestic Implementation 243 6.8.2 Regional Implementation 247 6.8.3 International Implementation 254 6.8.4 Universal Jurisdiction 258 6.9 Conclusion 259 7 Asian Approaches to International Law 261 Summary 261 7.1 Is International Law Eurocentric or Universal? 262 7.2 Is there any Uniform Asian Approach to International Law? 266 7.3 Global Governance and Asian Approaches 273 7.3.1 Constitutionalization of Globalization 274 7.3.2 International Law as the Designer of Globalization 278 7.4 Constitutionalization of International Relations: From Diplomacy to Law 281 7.5 International Relations: Harmonization of Domestic Rules and Practices 294 7.6 International Relations and Global Constitutionalism 302 7.7 Conclusion 306

x 8 The Future of International Law 309 Summary 309 8.1 Possible Future Trends 309 8.2 The Security Council and the Veto System 312 8.3 R2P: Responsibility to Protect or Right to Prevail 323 8.4 Two Innovations: PKOs & Criminal Trial 331 8.5 Conclusion: Positivism on the Rise 338 Bibliography 343 Subject Index 365

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Preface This book is inspired by academic curiosities, complemented by the awareness of international law from the standpoint of a practitioner. The first curiosity comes from the author’s appreciation of and dissatisfaction with the explanations of the existing concepts and modus operandi of global constitutionalism. Therefore, in this book, the author offers a positivistic explanation of global constitutionalism, along with the analysis of its five specific modi operandi. The second curiosity also stems from the author’s appreciation of and dissatisfaction with the existing descriptions of the relationships between global constitutionalism and international law. As the title indicates, this book appreciates the path of international law in its mission of realizing global constitutionalism on daily practices of international relations and cooperation through the system of positive rules. The path of international law, along with the concept of the rule of law shaped by global constitutionalism, has had a checkered history. For example, early in the nineteenth century, Jeremy Bentham claimed that “the most extended welfare of all the nations on the earth”1 had to be the main aim of international law, and argued for a systematic development of international law towards this direction. Bentham specifically pointed out five objectives of international law in creating rights and duties of its subjects.2 In line with Bentham, Woodrow Wilson also observed, “You will see that international law is revolutionized by putting morals into it.”3 Despite some unrelenting skepticism,4 in theory as well as practice, international law has already been 1  See Jeremy Bentham, Principles of International Law, Kindle Loc. 66–83 (John Bowring ed., 1843). Bentham wrote, “. . . unhappily there has not yet been any body of law which regulates the conduct of a given nation, in respect to all other nations on every occasion, as if this had been, or say rather, as if this ought to be, the rule,—yet let us do as much as is possible to establish one.” 2  Id., Kindle Loc. 83–96. The five objectives are: (i) doing no injury to other nations; (ii) doing the greatest possible benefit to other nations; (iii) not receiving any injury from other nations; (iv) receiving the greatest possible benefit from all other nations; and (v) in case of war, make such arrangements, that the least possible evil may be produced.” 3  See Arther Watts KCMG QC, The Importance of International Law, in The Role of Law in International Politics: Essays in International Relations and international Law 12 (Michael Byers ed., Oxford University Press, 2009). 4  See Jens David Ohlin, The Assault on International Law (Oxford University Press, 2014); see also Eric A. Posner, The Perils of Global Constitutionalism 34 (The University of Chicago Press, 2009). Posner observes that, “The great difficulty for global legalist is explaining why, if states

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mainstreamed in the direction Bentham and Wilson envisioned. Notably, 70 years after Bentham’s work, Oppenheim, investigating the future of international law, posited that international law should be developed as a science with positivist features.5 Today, Oppenheim’s vision has largely been realized, although many factors have continuously stymied the fully-fledged positivistic growth of international law. Nevertheless, its growth as a science has fruitfully institutionalized jural relations at the global level. Still, it is important to note that Oppenheim was also aware of the archaic role of politics in contesting the truthful operation and successful application of jural relations, as envisioned by international law.6 Against this backdrop, this book examines the dynamics of international law and politics in appreciating jural relations at the global level. Today, compared to the pre-UN context, especially fostered by the post-1990 development, international law has largely overcome many normative difficulties by institutionalizing jural relations for managing international cooperation. In many respects, the scope of its subjects has also been expanded from sovereign states to non-state actors, corporations, and individuals.7 Along this journey, like domestic law, international law has also gained the three basic positivistic features: legitimacy, authority, and validity. Moreover, the development of international law with constitutionalist features or constitutionalism in uniting international laws and legal systems, harmonizing domestic laws and legal system(s) with international laws, legalizing the fragmented body of create and maintain international law, they will also not break it when they prefer to free ride. In the absence of an enforcement mechanism, what ensures that states that create law and legal institutions that are supposed to solve global collective action problems will not ignore them?” 5  See Lassa Oppenheim, The Future of International Law, Kindle Loc. 832 (Clarendon Press, 1921). Oppenheim argued, “If science is to be equal to its tasks, it must take good heed to itself, it must become wholly positive and impartial, it must free itself from the domination of phrases, and it must become international.” 6  Id., Kindle Loc. 838. 7  For example Article 10.1 of the Responsibility of State for Wrongful Act, 2001 as adopted by General Assembly Resolution 56/83 of December 12, 2001, and corrected by document A/56/49(Vol. I)/Corr.4 and A/RES/62/61 of January 8, 2008, provides that, “The conduct of an insurrectional movement which becomes the new Government of a state shall be considered an act of the State under international law.” Further its Article 58 states that, “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.” Similarly the common Article 3 of the Geneva Conventions 1949 provide that, “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:”

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international laws and institutions as the instruments of global governance, engendering convergence between cross-country domestic laws and legal ­systems, and establishing the supremacy of international laws over domestic laws and legal systems has especially earmarked the era of global constitutionalism in the form of positivist international law. Against these backgrounds, this book assesses how the growing positivistic features of international law have been fused with the idea of global constitutionalism. Although the concept of global constitutionalism is varied and contested, the first chapter examines the manner in which the idea of global constitutionalism has been transforming the nature and modus operandi of international law from a normative8 to a positive9 realm. Without examining the role of jus cogens and the constitutionalist features of international law, it would be impossible to accurately comprehend the intrinsic features and modus operandi of global constitutionalism. The formal legal designation of jus cogens allows its identification with comparative ease in contrast to global constitutionalism and a global constitution, since the features and modus operandi of the latter two have not yet been formally defined in specific terms. As a result, academia employs the constitutionalist features of international law as tools for assessing the features and modus operandi of global constitutionalism. Therefore, the first chapter thoroughly examines some questions on global constitutionalism discoursed in academia. Can global constitutionalism exist without a global constitution? Is there a single global constitution? If there are multiple constitutions, how do they operate? How do the multiple global constitutions and global constitutionalism engage with the rule of jus cogens? By examining these questions in the first chapter, the author argues that no single constitution exists at the global level; rather, multiple 8  This book uses the term ‘normative’ to denote any standard that is not positive. In other words, any moral, ethical, religious, ideological, or value-laden concepts are categorized as normative or normative standards. 9  In this book, the terms ‘positive’, ‘positivity’ or ‘positivism’ are used to denote the idea of legal positivism. Historically, August Comte offered three features of positivism: predictability, verifiability, and certainty (PVC). In fact, these PVC features of positivity can also be found in any normative standards as well. For example, a moral standard of a community is as predictable, verifiable, and certain as any other standards that Comte considers positive. Thus, the PVC features alone are not adequate to separate law from normative standards. This book refers to three basic features of legal positivism: legitimacy, authority, and validity. Therefore, for this book, any standard that meets these three basic features is a positive standard. This explanation of positivism is distinct from the explanation of legal positivism offered by Austin, Hart, and Raz. This book classifies these three legal philosophers as the mainstream legal positivists.

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c­ onstitutions are united by global constitutionalism. Further, it is also implied that global constitutionalism is in the process of transcending international law and international relations into a positivistic domain. With these premises, the first chapter explicates global constitutionalism by employing five operative modalities combined with three formative features. The relationships of the United Nations (UN) Charter with global constitutionalism, more specifically the roles of the UN Security Council, are examined throughout the book. Further, in assessing the practical application and conceptual features of global constitutionalism, examples are not taken from all branches of international law, as the focus is predominantly on international trade law, international criminal law, and international human rights law. This book shows how, among the different branches of international law, international trade law reflects most of the features of global constitutionalism. At the same time, it also mirrors the acute legitimacy problem exacerbated by the asymmetric practices in the domains of negotiations, rule making, and implementation of international trade rules. In this regard, three chapters are dedicated to the elucidation of these developments and challenges of international trade law. More specifically, Chapter 2 examines the problems of asymmetry, exclusion, and distortion extant in international trade negotiations, while Chapter 3 explores the political economy of rules making in the World Trade Organization (WTO), using the Doha Round Negotiations as a reference. Chapter 4 investigates the North-South controversy and its implications for the development of international law. It is usually true that international trade negotiations result in the formation of international trade rules; however, it is evidently not understood whether international trade negotiations are receptive to international trade theories in making rules. More specifically, what role do international trade theories play in international trade negotiations and making rules? The second chapter of this book delves into this fundamental question and examines how international trade theories are viewed in international trade negotiations and rule making. In particular, the author explains the reasons most of the existing trade theories do not provide sufficient methodological grounds to shape the trade negotiations and the rule-making process in the WTO. Further, the analysis also reveals that some of these theories protect only the local interests through the prism of international regimes, while perpetuating the trend of bending international rules to serve the interests of the powerful countries. In most cases, trade negotiators obsessively try to apply those theories that have no prospects in defining the content of international trade rules that would promote global welfare, as Bentham had argued early in 1843. Against this backdrop, as an alternative inquiry, Chapter 2 of this book analyzes and s­ uggests

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welfare-grundnorm (WG). This concept is further discussed in Chapter 4, as a theory and methodology for designing international trade negotiations and making international trade rules fair, efficient, and equitable. Inopportunely, the Doha Round is mired by two fundamental problems. First, it has fallen victim to the key players’ reluctance to liberalize trade further. Second, the methodology that has been applied thus far is erroneous, as it legitimizes widespread departures from the original purpose and legal framework of the WTO, while ushering in a fragmented regime. As a result, there seem to be three possible outcomes for the Doha Round: an unfortunate death, a partial conclusion, or a conclusion with pervasive divergences and fragmentations. Any of these outcomes are likely to result in the WTO yielding to protectionist pressures, with sweeping implications for the multilateral trade regime. Against this backdrop, Chapter 3 analyzes the nature of the Doha Round Negotiations, focusing on the potential outcomes and the possible implications for the multilateral trading system. It also examines necessary frameworks for preventing the WTO from losing its credibility as a negotiating forum. Moreover, it suggests improvements in negotiation methodology to ensure that the WTO can stimulate its institutional vitality, thus validating it as one of the representative cases of global constitutionalism for reorienting the successful conclusion of the Doha Round. From the GATT to the Doha Round Negotiations, the participation of member countries symbolizes two major leanings: Fragmentation and Uniformity approaches. On many important issues, these approaches present conceptually distinct perspectives on the legal structure of international trade rules. Since the level-playing field between developed and developing countries varies vastly, the Fragmented approach argues that designing and applying the same set of rules (uniform rules) for both would be unfair. Developing countries, often guided by the idea that uniform rules would damage their aspirations to catch up with the developed countries, have continually demanded the fragmentation of rules between developed and developing countries. In contrast, the Uniformity approach insists on the application of a set of uniform rules for all countries. According to this approach, the fragmented rules would engender non-reciprocal treatment with an asymmetrical legal structure in place, which could be detrimental for an effective international legal order of trade liberalization. Proponents of the Uniformity approach also claim that the Fragmented approach would eventually fail to safeguard the interests of developing countries. There are few other branches of international law where states pursue different sets of rules for different countries as is done in the regime of international trade law. In this context, these two approaches provide a litmus test for examining the state of global constitutionalism in the arena

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of international trade law. Against this backdrop, Chapter 4 critically examines and explains the strengths and weaknesses of these dominant approaches and their implications for global constitutionalism. It also suggests an alternative approach in the form of welfare-grundnorm, which is positive in its nature and universal in its application. This chapter explicates the role of welfaregrundnorm, with its positive and universal features, as the methodology built upon the jural relations of legitimacy, authority, and validity. Its goal is streamlining the effective participation of both developed and developing countries in international trade negotiations and implementing the international trade rules that would further strengthen the demands of global constitutionalism. Along with international trade law, international criminal law and international human rights law have also gained most of the features of global constitutionalism. The development of international human rights law has, in real sense, empowered the sovereign people within both domestic and international spheres. With the advent of the third-generation human rights laws—i.e. human rights of groups, ethnic communities, and indigenous communities—the concept of self-determination has been expanded from external colonial emancipation to internal rights of identity, which reflects one of the recent dynamics of international law in expanding the rights of the people at the domestic level. In this context, the demands for the application of international human rights laws in designing a republican democratic constitution in Nepal relates to a very interesting development of international law at the domestic level, which is examined in Chapter 5.10 As recently as a few decades ago, international law and its principles could hardly be contemplated as playing catalytic roles in fashioning the rights of people at the domestic level. Today, a number of international instruments not only grant the rights of people, but also call for their implementation at the domestic level. In this context, Nepal presents a noteworthy case, especially with respect to the protection and promotion of the rights of minority groups, ethnic groups, and indigenous people in consonance with international laws related to the rights of self-determination. The growing demands for the implementation of rights secured under international law heighten the importance of global constitutionalism not only in fashioning the rules of international law, but also in shaping laws and legal systems at the domestic level. Against this background, Chapter 5 examines the

10  The earlier version of Chapter 5 was published as From External to the Internal Application of the Right to Self-Determination: The Case of Nepal, 21 International Journal of Minority and Group Rights 330–370 (2014).

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issue of the right to self-determination, its external and internal application, its epistemology, and associated problems. The development of human rights is one of the most fascinating issues globally, especially in advancing the ideals of global constitutionalism. At the same time, they are also puzzling and complex. They are fascinating because of their multifaceted importance in managing international relations as well as state-people relations. First, they are significant for human relationships, including international relations and cooperation. Second, they are also fascinating because the human rights instruments give voice to individuals as participants in international law. Third, unlike most other legal rights, human rights have roots in both domestic and international laws. Fourth, their scope and coverage are extremely broad, prompting the interest and engagement of individuals, organizations, communities, governments, and international society in the protection, promotion, and implementation of rights. This is by no means an exhaustive list. Chapter 6 examines the fascinating dynamics of international human rights laws, albeit mainly from the perspectives of global constitutionalism. While certainly fascinating, human rights are also puzzling. The puzzle stems from the wider scope or coverage of issues and subtle grounds of identification. The UN Office for the High Commissioner for Human Rights (OHCHR) has identified more than fifty major entries and more than one hundred subentries on the issues of human rights.11 These issues range from adequate housing, climate change, democracy, development, and HIV/AIDS to rights against violence. The list gives an impression that almost all major issues related to individual rights, dignity, and happiness belong to the scope of human rights. More pertinent is the issue of identification, particularly the act of identification of human rights based on its source; in other words, the origin of human rights. There are various, often incongruent, explanations pertinent to this issue. The confusion increases further when academic discourses question the very foundation of human rights.12 Due to their inalienability, human rights are the reason for defining and establishing the relationships between individuals and states and between states and the international community. With this foundation, no government is supposed to take away these inalienable rights, but should rather recognize and guarantee them under the legitimate framework of a state. Nonetheless, 11  See OHCHR, List of Human Rights Issues, available at . 12   See Joseph Raz, Human Rights Without Foundations, in The Philosophy of International Law 321–337 (Samantha Besson & John Tasioulas eds., Oxford University Press, 2010).

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among many criticisms, three objections to human rights regimes have gained much attention—lack of foundation, promotion of Western values, and implication of the weakest genre of international instruments. With the development of human rights as the intrinsic part of positive laws enshrined in international law, domestic constitutions and statutes, this chapter shows how the criticism against its foundation is very shaky and rather imperceptive. Culture is precious as well as dangerous. The genuine relationship between culture and human rights—especially when they are criticized as the products of the Western culture, while also being denied on the grounds of local cultural traditions—is a contentious issue that seems to be too enormous to address. Nonetheless, this chapter shows how the universal sense of encompassing and applying human rights in defining, regulating, and facilitating human relationships has empowered the people to celebrate human rights as an intrinsic staple of human dignity. The realization of judicial and quasijudicial mechanisms from the domestic level to the regional and international levels has brought a sea change to the dynamics of human rights implementation. Against the background of these developments, Chapter 6 shows that a human rights regime has already been established as an interlocutor of global constitutionalism. International law is gaining significance in defining jural relations among individuals, between a state and its citizens, between a state and foreigners, and in managing international relations among states. While gaining its universal footprint, it is also facing a number of fragmentations: multiple regimes, institutions, and spatial identifications. The manner in which these fragmentations might affect the course of global constitutionalism is examined in Chapter 7. With the emergence of global constitutionalism, domestic laws, policies, and administrative practices are required to be compatible with international laws. International laws are progressively assuming the position of supremacy over domestic laws, including constitutions. State Parties are not free to eschew their obligations from giving effect to international laws. These minimum harmonization requirements—supremacy and authority of international law—are constitutionalizing international relations, which have indeed already garnered the requisite legitimacy. In this regard, one of the obligations as well as contributions of any spatial explanation of international law, including the Asian approaches to international law, cannot be excluded from the scope of global constitutionalism. Thus, Chapter 7 specifically examines the Asian approaches to international law. The question of what role Asia has played in the history of international law, as well as its role in the modern era in designing and practicing the concept of global constitutionalism, might draw different paradigmatic responses,

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ranging from a passive recipient to an active partner and a designer of global constitutionalism. Since Asia itself is a vast region with heterogeneous genres of thought and varied levels of development, its role may well fit into all these paradigms, with conceivable peculiarities among its members. Chapter 7 contends that any claim to the modern international law as a product of a single culture or tradition grossly undermines the history of international law and the existence of customary practices in different countries across the globe. The analyses and arguments presented in this chapter examine the controversy of whether the origin of international law is attributable to a Eurocentric explanation only or it extends beyond this narrow realm. The relevance, if any, of a spatially fragmented concept like a European or Asian approach to international law is carefully analyzed from the perspective of global governance and global constitutionalism. In addition, the question of whether Asia, in all likelihood, is advancing global constitutionalism as a bystander or the partner of global governance is thoroughly assessed in Chapter 7. Finally, Chapter 8 examines how, against the backdrop of advantages in terms of power and influence, the powerful states often show their aversion to accepting the supremacy of international law as well as undermine the core attributes of global constitutionalism merely for the sake of serving their domestic interests. In reference to some of the significant trends in international law—including the responsibility of the state, responsibility to protect (R2P), fight against terrorism, use of force and the changing role of the UN Security Council, and the role of UN Peace Keeping Operations in the post-conflict countries—this chapter hypothesizes the future direction of international law and global constitutionalism from a positivistic perspective. Further, the author argues that, despite many ebbs and flows, international law is ­gaining more positivistic features that are sine qua nons in strengthening the idea of global constitutionalism. In a single sentence, Chapter 8 shows how the rule of law13 and positivism are interlinked in shaping the current and future trends of international law. In particular, they are reorienting ­international law 13   See Ian Brownlie, The Rule of Law in International Affairs 6 (Martinus Nijhoff Publishers, 1998). Brownlie states that, “The general emphasis on secondary rules and reference to the compulsory jurisdiction of courts, a legislature as the normal marks of a legal system, and centrally organized sanctions, lead Hart to give a low, or at any rate abnormal, status to public international law.” See also Jean d’Aspremont and Jorg Kammerhofer, Introduction: The Future of International Legal Positivism, in International Legal Positivism in a Post-Modern World 8 (Jorg Kammerhofer & Jean d’Aspremont ed., Cambridge University Press, 2014). The authors claim that, “. . . legal positivism does not need to be rehabilitated or rejuvenated, but more simply needs to be aware of its own limitations and must continuously reflect on its methodological and paradigmatic moves.”

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with the three basic features and five functions of global constitutionalism, as discussed throughout the book, especially in Chapter 1. In short, this book is expected to be of interest for researchers, academics, lawyers, judges, civil society leaders and activists, students, and any reader interested in international law and its future trends. It provides a modest exploration on the issues of global constitutionalism and the path of international law. Nonetheless, the author anticipates that it will aid in promoting useful discourse in the area of global constitutionalism, which is assuming catalytic roles in shaping the path of international law. I would like to express my sincere gratitude to BRILL for the publication of this book. I am also indebted to my anonymous reviewers. I would also like to take this opportunity to appreciate Ritsumeikan University, my colleagues, friends, and students, who have helped me in countless ways in this research and the preparation of this book. I feel proud to acknowledge that my son Sauhard has been an endless source of inspiration in writing this book. Thank you Sau! Surendra Bhandari Kyoto, Japan December 2015

Acronyms AD Anti-Dumping AMS Aggregate Measurement of Support AoA Agreement on Agriculture ARRA American Recovery and Reinvestment Act BC Before Christ BCE Before Christian Era CA Constituent Assembly CAT Convention Against Torture CBD Convention on Biological Diversity CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CSR Committee on State Restructuring CTS Council in Trade in Services DDA Doha Development Agenda DFQF Duty-Free and Quota-Free DNA Deoxyribonucleic Acid DSB Dispute Settlement Body DSU Dispute Settlement Understanding EC European Commission ECCC Extraordinary Chambers in the Court of Cambodia ECHR European Court of Human Rights ECJ European Court of Justice ESC Economic, Social, And Cultural Rights EU European Union FANs Friends of Anti-Dumping Negotiations FTAs Free Trade Agreements GA General Assembly GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade GDP Gross Domestic Product GNI Gross National Income GSP Generalized System of Preferences HDI Human Development Index HDRs Human Development Reports HIV/AIDS Human Immune Virus/ Acquired Immune Deficiency Syndrome H-O Heckscher-Ohlin HP Hewlett-Packard

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acronyms

ICC International Chamber of Commerce ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICESCR-OP Optional Protocol to the Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICRMW International Convention on the Protection of the Rights of All Migrant Workers ICTB International Crimes Tribunal of Bangladesh ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IL International Law ILO International Labor Organization INGO International Non-Governmental Organization IP Intellectual Property IR International Relations IRSD Internal Rights to Self-Determination ITO International Trade Organization LAV Legitimacy, Authority, and Validity LDC Least-Developed Countries LGBT Lesbian, Gay, Bisexual, and Transgender LMOs Living Modified Organisms MCA Military Commission Act MFN Most-Favored Nations NAFTA North American Free Trade Agreement NAMA Non-Agriculture Market Access NATO North Atlantic Treaty Organizations NGO Non-Governmental Organization NIEO New International Economic Order NTBs Non-Tariff Barriers OAS Organization of American States OECD Organization for Economic Co-operation and Development OEE Optimality, Efficiency, and Equilibrium OHCHR Office of the High Commissioner for Human Rights OTDDS Overall Trade Distorting Domestic Support PCIJ Permanent Court of International Justice

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PKOs PROO PTAs PVC QRs R2P RAM ROO RSD RTA S&D SAARC SC SCR / SC Res. SCSL SCT SPS STL TAA TFA TFEU TPP TRIPS TRQS T-TIP TWAIL UDHR UK UN UNCHR UNCTAD UNDMR UNDP UNDRIP UNHCR UNTS UPR UR U.S./ USA USSR

Peace Keeping Operations Preferential Rules of Origin Preferential Trade Agreements Predictability, Verifiability, and Certainty Quantitative Restrictions Responsibility to Protect Recently Acceded Members Rules of Origin Right to Self-Determination Regional Trade Agreement Special and Differential Treatment South Asian Association for Regional Cooperation Security Council Security Council Resolution Special Court for Sierra Leone Social Choice Theory Sanitary and Phytosanitary Special Tribunal for Lebanon Trade Adjustment Assistance Trade Facilitation Agreement Treaty on the Functioning of the European Union Trans-Pacific Partnership Trade Related Aspects of Intellectual Property Rights Tariffs Rate Quotas Transatlantic Trade and Investment Partnership Third World Approach to International Law Universal Declaration of Human Rights United Kingdom United Nations United Nations Commission on Human Rights United Nations Conference on Trade and Development UN Declaration on Minority Rights United Nations Development Program UN Declaration on the Rights of Indigenous People United Nations High Commission for Refugees UN Treaty Series Universal Periodic Review Uruguay Round United States of America Union of Soviet Socialist Republics

xxiv USTR United States Trade Representative VCLT Vienna Convention on the Law of Treaties WG Welfare-Grundnorm WTO World Trade Organization

acronyms

Table of Cases Aaland Islands Question 167 Appellate Body Report, European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries 91, 141 Appellate Body Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, Complaint by Ecuador 91, 141 Appellate Body Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 of the DSU 141 Appellate Body Report, India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products 137 Appellate Body Report: United States—Standards for Reformulated and Conventional Gasoline 35 Appellate Body: European Communities—Measures Concerning Meat and Meat Products (Hormones) 36 Appellate Body: India—Patent Protection for Pharmaceutical and Agricultural Chemical Products 36 Appellate Body: United States—Countervailing Duty Measures on Certain Products from China 72 Asahi Case 231 Avena 13 Banana 91, 141, 290 Bank Melli Iran v Council 44 Blue Diamond Society and Others v. Government of Nepal and others 218 Californian Constitution 219 Canadian Investment case 109 Defense of Marriage Act 220 Dena Nath v. National Fertilizers 226 EC—Conditions for Granting of Tariff Preferences to Developing Countries, Panel Report 134 Evans v. the United Kingdom 225 Francis Coralie Mullin v. Union Territory Delhi 226 Gasoline 35 GATT Panel, Canada—Certain Measures Concerning Periodicals 109 Hamdan v. Rumsfeld 246, 296 Hassan and Ayadi v Council and Commission 44 Hollingsworth v. Perry 219 Horiki Case 231

xxvi

table of cases

Hormone Dispute 36 Kadi 44 Kapila Hingorani v. State of Bihar 226 Keshavananda Bharati v. State of Bihar 226 Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory 47, 292 Lotus case 300 Nicaragua v. United States 30, 285 Olga Tellis & Others v. Bombay Municipality Corporation & Others 226 Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas—Second Recourse to Article 21.5 of the DSU by Ecuador 141 Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, Complaint by Ecuador 141 Panel Report: China—Measures Related to the Exportation of Rare Earth, Tungsten and Molybdenum 35 Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India 226 People’s Union for Civil Liberties v. Union of India 226 Pinochet 237 Planned Parenthood of Southeastern Pennsylvania v. Casey 225 Proposition 8 218, 219 Prosecutor v. Du [Ko Tadi 316 Rare Earth 35 Roe v. Wade 225 Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense 10, 228 Sei Fuji v. California 246 Shantistar Builders v. Narayan Khimalal 226 Tadi 30 Tariffs Preferences 141 The Queen on the Application of Mrs. Dianne Pretty v. DPP 226 Thomas Lubanga 302 Western Sahara 165, 166, 168, 225, 255 Yassin Abdullah Kadi v. Council of European Union 316

Table of Statutes African Charter 247 Agreement on Agriculture 148, 159 Aid for Trade, Ministerial Decision (WT/MIN(13)/34 or WT/L/909) 119 American Convention on Human Rights 247, 249, 250 American Declaration of Independence of 1776 168, 247 American Recovery and Reinvestment Act of 2009 108 AoA 97, 114, 120, 121, 122 Arab Charter 253, 254 Arab Charter of Human Rights 253 Atlantic Charter 146, 169 Bali Ministerial Conference 104, 118, 123 Bangkok Declaration of Human Rights of the Asian States 245 Cairo Declaration 245, 247 Cartagena Protocol 31 CEDAW 181, 184, 222, 238, 239, 240, 244, 255, 257 Chinese Constitution 10, 19, 20 Clean Air Act 35 Constitution of South Africa 9, 260 Constitution of the Republic of Ireland 225 Constitutions of the United States 19 Convention Against Torture 10, 212, 222, 226, 236, 298 Convention on Biological Diversity 31 Convention on the Elimination of All Forms of Discrimination Against Women 181, 222, 239 Convention on the Rights of Persons with Disabilities 223 Convention on the Rights of the Child 222, 240 Cotton, Ministerial Decision (WT/MIN(13)/41 or WT/L/916) 119 Criminal Justice Act, 1988 238 CRPD 223, 238, 255 DDA 95, 97, 99, 100, 101, 116 Declaration on Permanent Sovereignty over Natural Resources, GA res. 1803 (XVII) of 14 December 1962 170 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, A/RES/25/2625 (October 24, 1970) 316

xxviii

table of statutes

Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA res. 2625 of 24 October 1970 171 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA res. 1514 (XV) of 14 December 1960 170 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514 (XV) of 14 December 1960 166, 180 Doha Declaration 95, 98, 100, l02, 132 Doha Development Agenda 95, 101, 105, 108, 132, 152 Duty-Free and Quota-Free Market Access for Least developed countries, Ministerial Decision (WT/MIN(13)/44 or WT/L/919) 119 ECHR 225, 229, 248, 249, 251, 298 Enabling Clause 91, 139, 144 EU, Council Regulation Concerning Restrictive Measures in Response to the Illegal Annexation of Crimea and Sevastopol, NO. 1351/2014 (Dec. 18, 2014); 2014/386/CFSP ( June 23, 2014) 320 European Convention on Human Rights 31, 244, 247, 298 European Human Rights Convention 227 Export Competition, Ministerial Declaration (WT/MIN(13)/40 or WT/L/915) 119 French Declaration 214, 217, 220 GA Res. 377 (V) of Nov. 3, 1950 322 GA Res. A/CN.4/L.682, April 13, 2006 99 GA Res. A/RES/68/262 (April 1, 2014) 319 GA Res. A/RES/69/180 ( June 30, 2015) 318 GA/RES/112(II) A, Nov. 14, 1947 288 GATS 12, 13, 103, 104, 159, 282 GATT 12, 13, 35, 42, 43, 57, 73, 74, 76, 78, 80, 81, 82, 87, 88, 89, 90, 93, 96, 97, 101, 109, 114, 116, 126, 127, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 142, 143, 144, 145, 146, 147, 148, 149, 152, 159, 161, 278, 282, 295 GATT, Differential and More Favorable Treatment Reciprocity and Fuller Participation of Developing Countries (Enabling Clause), L/4903 (28 Nov. 1979) 139 General Agreement on Tariffs and Trade 12, 57, 89, 134, 147, 282, 295 General Agreement on Trade Related Aspects of Intellectual Property Rights 13, 282 General Agreements on Trade in Services 12 General Assembly Resolution 39/46, 10 December 1984 10, 212 General Assembly Resolution 68/262 of March 27, 2014 42 General Services, Ministerial Decision (WT/MIN(13)/37 or WT/L/912) 119 Geneva Conventions 246, 258, 296

table of statutes

xxix

Genocide Convention 258, 329 Human Rights Acts 39, 40, 236, 245 Human Rights Acts of Australia 40 ICCPR 22, 31, 39, 40, 44, 50, 171, 176, 177, 179, 181, 184, 187, 206, 216, 217, 218, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 235, 238, 244, 245, 246, 255, 256, 305 ICERD 222, 238, 239, 244, 257 ICESCR 22, 31, 44, 171, 179, 181, 184, 187, 206, 211, 222, 231, 232, 233, 238, 244, 245, 256 ICPRMW 223, 238, 242 ICRMW 241, 242 ILO 169 175, 223 ILO Conventions 241 Indian Patent Act 36 International Convention Against the Taking of Hostages 259 International Convention for the Protection of All Persons from Enforced Disappearance 223 International Convention for the Suppression of Financing of Terrorism, 1999 48 International Convention for the Suppression of Terrorist Bombings, 1997 48 International Convention on the Elimination of All Forms of Racial Discrimination 222, 238 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 223, 242 International Convention on the Suppression and Punishment of the Crime of Apartheid 9, 258 International Covenant on Civil and Political Rights 31, 44, 171, 177, 217, 221, 222, 296, 305 International Covenant on Economic, Social and Cultural Rights 31, 44, 171, 211, 221, 222, 231 International Covenant on Economic, Social, and Cultural Rights 31, 44 International Labor Organization (ILO) Convention 169 175 July Package 100 Marrakesh Agreement 31, 32, 57, 97 Monitoring Mechanism on Special and Differential Treatment, Ministerial Decision, (WT/MIN(13)/45 or WT/L/920 119, 151 NAFTA 82, 134 OP-CEDAW 222 OP-CRPD 223

xxx

table of statutes

Operationalization of the Waiver Concerning Preferential Treatment to Services and Service Suppliers of Least developed countries, Ministerial Decision (WT/MIN(13)/43 or WT/L/918) 119, 150 Optional Protocol of the CRC 241 Optional Protocol to the Convention Against Torture 222 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women 222 Optional Protocol to the Convention on the Rights of Persons with Disabilities 223 Optional Protocol to the Covenant on Economic, Social and Cultural Rights 222 Optional Protocol to the international Covenant on Civil and Political Rights 222 Post-Bali Work, General Council Decision of 27 November 2014, WT/L/941 (Nov. 28, 2014) 101 Preferential Rules of Origin for Least developed countries, Ministerial Decision (WT/MIN(13)/42 or WT/L/917 119, 149 Presidents 2010’s Trade Policy 84, 110, 160 Protocol to the African Charter 251, 252 Public Stockholding for Food Security Purposes, Ministerial Decision (WT/MIN(13)/38 or WT/L/913) & November 2014 decision (WT/L/939)  119, 120 Rome Statute 301, 335, 336 Rome Statute of the International Criminal Court 44, 212, 258, 301 Sanitary and Phytosanitary Agreement 36 SC Res. 2216 of 14 April 2015 317 SC Resolution 1373 of 2001 292 SC Resolution 554 of August 17, 1984 9 SC Resolutions 1368 & 1373 47, 292 SC/RES/12, Dec. 19, 1946 287 SC/RES/1203 of 24 October 1998 328 SC/RES/1244 of 10 June 1999 329 SC/RES/143 of 14 July 1960 288, 332 SC/RES/161 of 21 February 1961 332 SC/RES/1672 of 25 April 2006 328 SC/RES/1894 of 11 November 2009 325 SC/RES/1973 of 17 March 2011 48, 293, 325 SC/RES/1973, March 17, 2011 48, 293, 325 SC/RES/1996 of 8 July 2011 325 SC/RES/20, Jan 20, 1947 287

table of statutes

xxxi

SC/RES/2042 (April 14, 2012) 320 SC/RES/2043 (April 21, 2012) 321 SC/RES/2083, Dec. 17, 2012 48, 293 SC/RES/2085, Dec. 20, 2012 48, 293 SC/RES/2095 of 12 March 2013 325 SC/RES/2109 of 11 July 2013 325 SC/RES/2118 (Sept. 27, 2013) 321 SC/RES/2139 (Feb. 22, 2014) 320 SC/RES/22, April 9, 1947 287 SC/RES/2200 of 12 February 2015 328 SC/RES/2209 (March 6, 2015) 321 SC/RES/3, April 4, 1946 287 SC/RES/39, Jan 20, 1948 287 SC/RES/4, April 29, 1946 287 SC/RES/41, April 21, 1948 287 SC/RES/50, May 29, 1948 287 SC/RES/7, June 26, 1946 287 SC/RES/855 of 9 August 2003 328 Second Optional Protocol to the ICCPR 217, 226 Second Optional Protocol to the international Covenant on Civil and Political Rights 222 Security Council Resolution (SCR) 1373 of 2001 47 Security Council Resolution S/RES/1973, March 17, 2011 293 Security Council Resolutions S/RES/82, June 25, 1950 42, 288 Singapore Ministerial Declaration 98 SPS Agreement 36 Statute of the International Criminal Court 44, 212, 245, 258, 271, 301 The President’s 2010 Trade Policy 84, 110, 160 Trade and Transfer of Technology, Ministerial Decision (WT/MIN(13)/35 or WT/L/910) 119 Trade Facilitation Agreement (TFA), WT/MIN(13)/36 or WT/L/911 119 Trade Policy 2009 109 Transatlantic Trade and Investment Partnership 125 Trans-Pacific Partnership Agreement 125 Treaty of Versailles 282 Treaty of Westphalia 263, 268, 282, 283 TRIPS 13, 36, 40, 64, 96, 100, 101, 119, 132, 159, 282 TRIPS Non-violation and Situation Complaints, Ministerial Decision (WT/MIN(13)/31 or WT/L/906) 119 UN Declaration on Minority Rights 177

xxxii

table of statutes

UN GA Res. 1899(XVIII) 9 UN GA Res. 3068(XXVIII) 9 UN GA Res. 395(V) of Dec. 2, 1950 9 UN GA Res. 48/1 of Oct. 8, 1993 9 UN SC Res. 134 of April 1, 1960 9 UN SC Res. 181 of Nov. 4, 1963 9 UN SC Res. 554 of August 17, 1984 9 UN, Charter of Economic Rights and Duties, A/RES/3281 (XXIX) (Dec. 12, 1974) 142 UN, Declaration on the Establishment of a New International Economic Order, A/RES/3201/(S-VI) (May 1, 1974) 141 Understanding on Tariff Rate Quota Administration Provisions of Agricultural Products, as Defined in Article 2 of the Agreement on Agriculture, Ministerial Decision (WT/MIN(13)/39 or WT/L/914) 119, 121 UNDMR 177, 178, 184 United for Peace Decision in 1950 323 United Nations Charter 2, 8, 12, 170, 220, 314, 330 Universal Declaration of Human Rights 171, 179, 180, 210, 212, 221, 254, 255, 260 US Constitution 40, 215, 216, 246 US Executive Order, Blocking Property of Additional Persons Contributing to the Situation in Ukraine, EO 13661 (March 20, 2014) 320 US Executive Order, Blocking Property of Certain Persons and Prohibiting Certain Transactions with Respect to the Crimea Region of Ukraine, EO 13685 (Dec. 19, 2014) 320 US Executive Order, Blocking Property of Certain Persons Contributing to the Situation in Ukraine, EO 13660 (March 6, 2014) 320 VCLT 11, 12, 27, 28, 29 Vienna Convention on the Law of Treaties 11, 27, 321 Vienna Declaration 223 Westphalia Treaty 286 White House, Executive Order 13107 of Dec. 10, 1998 246 Work Program on Electronic Commerce, Ministerial Decision (WT/MIN(13)/32 or WT/L/907) 119 Work Program on Small Economies, Ministerial Decision (WT/MIN(13)/33 or WT/L/908 119 World Trade Organization (WTO) Agreement 2, 57 WTO Agreements 31, 32, 86, 88, 90, 93, 97, 98, 124, 130, 146, 148, 151 WTO Dispute Settlement Agreement (1994) 145

table of statutes

xxxiii

WTO Ninth Ministerial Declaration (Bali Declaration), WT/MIN(13)/DEC (Dec. 11, 2013) 101 WTO, Duty-Free and Quota-Free (DFQF) Market Access for Least-Developed Countries, Ministerial Decision of 7 December 2013 151 WTO, Implementation of Special and Differential Treatment Provisions in WTO Agreement and Decisions, WT/COMTD/W/77 (25 Oct. 2000) 133 WTO, Monitoring Mechanism on Special and Differential Treatment, Ministerial Decision of 7 December 2013 151 WTO, Operationalization of the Waiver Concerning Preferential Treatment to Services and Service Suppliers of Least-Developed Countries, Ministerial Decision of 7 December 2013 150 WTO, Preferential Rules of Origin for Least-Developed Countries, Ministerial Decision of 7 December 2013 149 WTO, Work Program on the Electronic Commerce Decisions of 17 Dec. 2011, WT/L/843 (19 Dec. 2011) 101

List of Charts 1 2 3 4 5 6 7 8 9 10 11 12 13

Features of global constitutionalism 4 Normative benchmarks of global constitutionalism 5 Positive benchmarks of global constitutionalism 6 Linkages and distinctions between normative and positive standards 16 A positive explanation of global constitutionalism 23 Forms and features of global constitutionalism 24 Challenges to global constitutionalism 41 Frontiers of welfare-grundnorm 162 Pareto optimality & efficiency 163 Forms of RSD 165 Cases Decided by ECHR between 1959–2014 249 Basic features of the Asian approaches to international law 272 Constitutionalization of globalization 276

List of Tables 1 2 3 4 5 6 7

A comparison of human development 58 The Smithian and Ricardian trade models 61 U.S. trade balance & export from 2008–2014 108 The major ethnic, linguistic, and religious groups in Nepal (in %) 191 Status of language used as the means of communication in Nepal 192 Distribution of ethnic groups in Nepal 193 Gini Coefficient, i.e. level of inequality 197

About the Author Surendra Bhandari is an Associate Professor of law at the College of International Relations, Ritsumeikan University, Kyoto, Japan. As an authority on legal philosophy, constitutional law, international law, and international trade law (particularly on the World Trade Organization), he has authored a number of articles and books, including Law and State in the Globalized World: A Conceptual and Comparative Analysis (2015), Self-Determination and Constitution Making in Nepal (2014), Making Rules in the WTO: Free or Managed Trade? (2012), and WTO and Developing Countries (1998/2004), among others.

Chapter 1

Global Constitutionalism: Positivism and International Law Summary Without first examining its relationships with jus cogens and the constitutionalist features of international law, it would be exceedingly difficult to understand the intrinsic features and modus operandi of global constitutionalism. The formal legal designation of jus cogens allows its identification with comparative ease in contrast to global constitutionalism and a global constitution, as the features and modus operandi of the latter two have not yet been formally defined in ­specific terms. As a result, academia employs the constitutionalist features of international law as tools to assess the characteristics and modus operandi of global constitutionalism. This chapter aims to examine some questions apposite to academic discourses of global constitutionalism. Can global constitutionalism exist without a global constitution? Is there a single global constitution? If there are multiple constitutions, how do they operate? How do global constitutions and global constitutionalism engage with the rule of jus cogens? In examining these questions, this chapter first argues that there exists no single constitution at the global level, but instead multiple constitutions united by global constitutionalism. Second, it also posits that global constitutionalism is in the process of transforming international law and relations from a normative to a positive realm. With these premises, this chapter explicates global constitutionalism employing five positivist operative modalities coalesced with three formative features as the coeval of jus cogens. 1.1

Introduction: The Problematic Dynamics

Critics often dismiss the concept of global constitutionalism for being naïve, sloppy, and even disingenuous.1 It is generally acknowledged that the emergence of the concept of ‘global constitutionalism’ is not only a recent one, but one that is still in the making, initiated with the commencement of the United 1  See Vlad F. Perju, Cosmopolitan Constitutional Law, 35 Cardozo Law Review 711–768 (2013).

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004313460_002

2

Chapter 1

Nations Charter (UN Charter) in 1945 and shaping up in the post-1990 global political scene.2 Global constitutionalism is often projected in the form of a treaty, such as the UN Charter3 or the World Trade Organization (WTO) Agreement.4 Its function is explained parallel to that of a treaty having constitutional features. For this purpose, some classify international laws as either constitutionalized or sub-constitutional (or ordinary international laws).5 Wrongly or rightly, this delineation offers a new way of looking at international law. As there exists no formal legitimate definition of global constitutionalism and no single discipline has predominantly informed its distinctive properties, interests and level of understanding vary in academia. Anne Peters argues that global constitutionalism is mainly driven by academics and to some extent by international court, but not by governments and treaty-makers.6 Such observations prompt the question of, if governments are not willing and treaties do not legitimize the idea of constitutionalism, how could the idea of global ­constitutionalism possibly exist in a legal sense? Instead, this chapter argues that, while a treaty and global constitutionalism are not interchangeable concepts and products, they do have close connections. This chapter shows 2  See Thomas Muller, Global Constitutionalism in Historical Perspective Towards Refined Tools for International Constitutional Histories, 3 Global Constitutionalism 71–101 (2014); see also Christine E. Schwobel, Global Constitutionalism in International Legal Perspective (Martinus Nijhoff, 2011); Andreas L. Paulus, The International Legal System as a Constitution, in Ruling the World? Constitutionalism, International Law, and Global Governance 69–112 (Jeffrey L. Dunoff & Joel P. Trachtman eds., Cambridge University Press, 2009); Barry Buzan & Richard Little, World History and the Development of Non-Western International Relations Theory, in Non-Western International Relations Theory: Perspectives on and Beyond Asia 197–220 (Amitav Acharya & Barry Buzan eds., Routledge, 2009); Jan Kalbbers, Anne Peters, & Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009). 3  See Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Brill, 2009); see also Bardo Fassbender, The United Nations Charter as the Constitution of the International Community, 36 Columbia Journal of Transnational Law 592–620 (1998). 4  See Deborah Z. Cass, The Constitutionalization of the WTO: Legitimacy, Democracy & Community in the International Trading System (Oxford University Press, 2005); see also John H. Jackson, The World Trade Organization, Constitution and Jurisprudence (Routledge, 1998). 5  See Jeffrey L. Dunoff & Joel P. Trachtman, A Functional Approach to International Constitutionalization, in supra note Ruling the World?, pp. 5–6. 6  See Ann Peters, Are we Moving towards Constitutionaliation of the World Community? in Realizing Utopia The Future of International Law 118–135 (Antonio Cassese ed., Oxford University Press, 2012).

Global Constitutionalism

3

how global constitutionalism exists even without a written treaty. Further, it ­examines how treaties have all or only some components of global constitutionalism. Against this background, it explores how the idea of global ­constitutionalism is reflected in both treaties and customary practices at the positive level and is explored by academics and civil society organizations at the normative level. This chapter argues that the real problem of global constitutionalism starts from coalescing it with a treaty. This problem raises a number of questions. For example, should there first exist a written constitution—a constitutional treaty of all international laws—for the presence of global constitutionalism? Can global constitutionalism exist without a global constitution? Is there a single global constitution, such as the supreme law at the domestic level? If multiple constitutions can survive at the global level, how do they operate? How do global constitutions and global constitutionalism engage with each other and with jus cogens? Are jus cogens limited only to treaties constitutional in nature? Can a treaty of constitutional nature disregard jus cogens present in other so-called non-constitutional treaties (the so-called sub-constitutional treaties) institutionalized by customary international law? If jus cogens play the supreme role in legitimizing international rules,7 do they also constitute global constitutionalism within these frameworks? Can global constitutionalism exist in parallel or beyond the scope of jus cogens? These questions are not exhaustive, but certainly significant. This chapter analyzes each one to underscore a clear perspective on global constitutionalism, both in terms of its features and modus operandi, against the context of its dynamic relations with jus cogens.8

7  In Vardross terms, “Jus cogens do not exist to satisfy the needs of the individual states but the higher interests of the whole community.” Cited in Aoife O’Donoghue, Constitutionalism in Global Constitutionalization 114 (Cambridge University Press, 2014). 8  See A. Orakhelashvili, Peremptory Norms as an Aspect of Constitutionalization in International Legal System, in The Dynamics of Constitutionalism in the Age of Globalization 153, 153–180 (M. Roshman & S. Muller eds., The Hague Academic Press, 2008). Orakhelashvili argues that jus cogens as a set of higher rules play a constitutional role in the international legal system. He further contends, “International law as such has neither a written constitution nor any authoritative pronouncement on the existence of an unwritten constitution. Still the international legal system is constituted in certain ways and should therefore be seen as possessing a constitution at least in a material if not formal, sense. Peremptory norms, both in terms of referring to basic values of the international community and in terms of their hierarchical superiority, are suited to performing part of the constitutional task in the international legal system.”

4 Various authors have categorized academic traditions on global constitutionalism in distinctive ways.9 This chapter, however, broadly identifies and examines the operation of global constitutionalism both from normative and positive benchmarks.10 As shown in the Chart 1 and 2, the normative benchmarks, in the form of concepts and theories, are further divided into three

Chapter 1

Chart 1

Features of global constitutionalism.

9  See A. Wiener, A. F. Lang, J. Tuley, M. P. Maduro, & M. Kumm, Global Constitutionalism: Human Rights, Democracy, and the Rule of Law, 1 Global Constitutionalism 1–5 (2012). Wiener, Lang, Tuley, Maduro, and Kumm have used the idea of three C’s in conceptualizing global constitutionalism. The three C’s are: constitution, constitutionalization, and constitutionalism. Schwobel provides a different model by categorizing global constitutionalism into four dimensions: social constitutionalism, institutional constitutionalism, normative constitutionalism, and analogical constitutionalism. See Christine E. Schwobel, Organic Global Constitutionalism, 23 Leiden Journal of International Law 529–553 (2010); see also Dunoff and Trachtman, supra note A Functional Approach. Dunoff and Trachtman categorize global constitutionalism into three functional descriptions based on the p ­ urposes of international constitutional norms. They are: enabling constitutionalism, constraining constitutionalism, and supplemental constitutionalism. 10  There is not a single or uniform version of positivism. Fiss argues that, “Positivism is an idea that has generated a great deal of confusion, even exasperation.” See Owen M. Fiss, The Varieties of Positivism, 90 The Yale Law Journal 1007, 1007–1016 (1981); see also John Gardner, Legal Positivism: 5 ½ Myths, in Arguing About Law 153 (Aileen Kavanagh & John Oberdiek eds., Routledge, 2009, Kindle Edition). Gardner argues that, “. . . all those designated as ‘legal positivists,’ for the label attaches by virtue of common themes rather than common theses. But things are different when the label ‘legal positivism’ is used in philosophical argument. In philosophical debate our interest is in the truth of propositions, and we always need to know which proposition we are supposed to be debating. So there is nothing philosophical to say about ‘legal positivists’ as a group unless there is some distinctive proposition or set of propositions that was advanced or assumed by all of them.” Against the background of these arguments this chapter operationalizes ‘positivism’ or a ‘positive standard’ as an apparatus that confirms the coherent existence and application of legitimacy, authority, and validity, i.e. an integrated approach to law. On the contrary, ‘normativism’ or a ‘normative standard’ denotes a concept contrasting with a positive standard. More specifically, the terms ‘normative,’ ‘normativism’ and ‘ideological’ mean or denote a system of values associated with and espoused by power, political

Global Constitutionalism

5

broad traditions. Similarly, the positive benchmarks are also explicated via two features: formative standards and modus operandi. This chapter is divided into five parts, including this introductory section. The second section examines the normative benchmarks of global constitutionalism, as shown in Chart 1. The third section examines the ­positive ­standards of global constitutionalism, as shown in Chart 2. The fourth section examines the challenges to global constitutionalism, while the final ­section concludes the chapter by recapitulating its main arguments. Normative benchNormative marks that cultivate Benchmarks concepts and theories are investigated Concepts/Theories/ Traditions in reference to three academic traditions: Contested instrumentalist, Instrumentalists Inter-disciplinarist Consititutionalist inter-disciplinarist, and contested con- Chart 2 Normative benchmarks of global constitutionalism. stitutionalist. Being implicit with normative premises, these traditions suffer from incommensurably diverse approaches. The instrumentalist tradition describes global constitutionalism as the sole instrument of global governance. As such, it often endorses the UN Charter as the only global constitution. In the following section, this chapter reveals that the instrumentalist tradition is erroneous and esoteric. Similarly, the inter-disciplinarist tradition also suffers from the defects of normativism with its endeavor to explain global constitutionalism as the intersection of law, politics, and ethics.11 This chapter explicates global constitutionalism as transcended into positive rules, but not as the intersection of non-legal concepts.12 The contested c­ onstitutionalist ideology, religion, culture, beliefs, morals, or ethical precepts, which do not fully meet the criteria of the integrated approach to law. For thought provoking discussion on positivism see also Neil Dexbury, English Jurisprudence Between Austin & Hart, 91 Virginia Law Review 1–91 (2005); Frederick Schauer, Positivism as Pariah in the Autonomy of Law 31–56 (Robert P. George ed., Clarendon Press 1996); Christopher McMahon, Autonomy and Authority, 16 Philosophy & Public Affairs 303–328 (1987); Joseph Raz, Authority and Justification, 14 Philosophy & Public Affairs 3–29 (1985); H. L. A. Hart, Bentham & Demystification of Law, 36 Modern Law Review 2–17 (1973). 11  See Weiner & Others, supra note Global Constitutionalism, at 2. 12  See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16–59 (1913). For Hohfeld the presence of jural relations is a key factor to separate a legal concept from non-legal concepts.

6

Chapter 1

tradition offers a number of valuable features of global constitutionalism, but it also suffers from the problem of appreciating constitutionalism as the coeval of a constitution. Broadly, none of these three traditions offers precise explanations of legitimacy, authority, and validity intrinsically associated with constitutionalism. These weaknesses are comprehensively analyzed in section two below. With a view to address these weaknesses and offer an alternative to these traditions, section three explores a positivist approach of global constitutionalism. Section three of this chapter explicates global constitutionalism as a positive standard premised on three formative features—legitimacy, authority, and validity—in modeling the five functional characteristics: uni­ ting international laws and legal systems, harmonizing domestic laws and legal system(s) with international laws, legalization Chart 3 Positive benchmarks of global constitutionalism. of international laws and institutions as the instruments of global governance, engendering convergence between cross country domestic laws and legal systems, and establishing the supremacy of international laws over domestic laws and legal systems. Mainly, this chapter argues that a theoretically sound and practically robust concept and modus operandi can be derived from an analysis of these formative and operational aspects of global constitutionalism. Examining the five operational aspects and three formative features, this chapter first argues that there exists no single constitution, but rather a plurality of constitutions at the global level. Some of these constitutions are full of constitutionalism, and some of them incorporate constitutionalism partly or at a minimum. Further, some international laws exist without any features of constitutionalism. Second, it also argues that global constitutionalism operates at the positive rather than normative level, being distinguished by the formative features and operational aspects. With these propositions, this chapter explicates the manner in which global constitutionalism is transforming from normative to a positive realm as the self-constitutive standard of globalization and global governance.13 13  See Philip Allot, Eunomia: New Order for a New World XX (Oxford University Press, 1990). In Eunomia, Allot has extensively articulated the idea of self-constituting global

Global Constitutionalism

1.2

7

Normative Fluidity of the Three Traditions

Broadly, this chapter underscores the modus operandi of global constitutionalism into normative and positive domains. Functionally, normative standards consist of an ‘ought’ concept, since they are predominantly deficient of legitimacy, authority, and validity (LAV). On the other hand, positive standards incorporate all LAV, and in this sense they consist of an ‘is’ concept. In academia, however, this distinction is not straightforward. For example, Kelsen’s norms are both value-laden and value-free. In both of these contexts, they validate one another. This smokescreen further leads to the invention of ‘normative positivism,’14 which is unbearably elusive. Nevertheless, Kelsen brilliantly analyzed the normative and positive contours of a modus operandi. For him, a norm consists of two different functions: an authorizing, permitting, or commanding function, and a reasoning element, designated for doing, observing, or following. The norm that commands doing certain things in a certain way qualifies as an ‘is’ and is therefore a positive standard because the meaning is certain. Similarly, the norm that provides reasoning to do things is an ‘ought’ and the reason is formed based on a social value system that assigns meaning; therefore, the ‘ought’ is normative.15 In short, Kelsen’s grundnorm is presupposed and thus it is normative,16 whereas this chapter underscores global constitutionalism as a grundnorm with the features of positivity in place. As claimed by Rawls, normative standards are a moral view, which is an extremely complex structure of principles, ideals, and precepts involving

c­ onstitutionalism. Allot argues that, “The hypothesis proposed in Eunomia suggests that a society constitutes itself, not only in the form of law and legal institutions and not only in the real-world struggles, political and economic and personal, of everyday life, but also in society’s struggle about ideas. The self-constituting of the international society of the twenty-first century will be no different.” This book employs the ‘self-constituting’ concept, further, in reflecting the growth of international order from a normative to a positive realm. 14  See Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism 21 (Oxford University Press, 2010); see also Jeremy Waldron, Normative (or Ethical) Positivism, in Hart’s Postscript: Essay on The Postscript to the Concept of Law, pp. 410–433 (Jules Coleman ed., Oxford University Press, 2001); Deryck Beyleveld & Roger Brownsword, Normative Positivism: The Mirage of the Middle-Way, 9 Oxford Journal of Legal Studies 463–512 (1989). 15  See Hans Kelsen, Pure Theory of Law 1–5 (M. Knight trans., The Lawbook Exchange Ltd., 2009); see also Hans Kelsen, General Theory of Law and State 29–49 (A. Wedberf trans., The Lawbook Exchange Ltd., 2007). 16  Id., 193–278.

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thought, conduct, feeling, justification, and ideology.17 There is no single correct moral view, ideal, or precept of thought and justification; incommensurably varied perspectives occupy the same issue or reality. Until transformed into positive standards by a formal legislative or treaty-making process, these perspectives might have their own beauty, value, and significance as concepts, academic explanations, theories,18 and sources of principles. Nonetheless, they lack legitimacy, authority, and validity, i.e. the characteristics of positivity. In essence, the three traditions mainly suffer from normative fluidity, which the following passages discuss in detail. 1.2.1 Instrumentalist Tradition The instrumentalist tradition underlines global constitutionalism as the tool of global order and governance. It ascribes the UN Charter with the designation of a constitution for global governance.19 Broader perspectives are found not only the UN Charter, but also the WTO Agreement, and other international treaties with the features of a constitution. In contrast, Orakhelashvili claims, “International law as such has neither a written constitution nor any authoritative pronouncement on the existence of an unwritten constitution.”20 Moreover, critics also deny or at least doubt the existence of a truly global world order.21 For them, economic globalization may not continue at its current pace because the international order is facing a paradox.22 Besides these doubts, the main problem the instrumentalist tradition usually confronts is its understanding of global constitutionalism in the shadow of a constitution. 17  See John Rawls, A Theory of Justice 404 (Revised ed., Harvard University Press, 1999). 18  See Orakhelashvili, supra note Peremptory Norms, at 154. Orakhelashvili argues that, “Theory is only as good as its actual impact on pertinent legal positions. Otherwise, it would remain a mere reflection of the views of individual writers, in which case it would be unlikely to have any influence on normative developments in the international legal system.” 19  See Michael W. Doyle, Dialectics of a Global Constitution: The Struggle over the UN Charter, 18 European Journal of International Relations 601–624 (2012); see also A. Julian, Constitutionality and Constitutionalism Beyond the State: Two Perspectives on the Material Constitution of the United Nations, 10 International Journal of Constitutional Law 627–659 (2012); Thomas M. Frank, Preface: International Institutions: Why Constitutionalize? in supra note Ruling the World, at xi–xiv; Bardo Fassbender, The United Nations Charter as the Constitution of International Community, 36 Columbia Journal of Transnational Law 592–620 (1998). 20  See Orakhelashvili, supra note Peremptory Norms, at 153. 21  See Henry Kissinger, World Order 2 (Penguin, 2014). 22  Id., at 368–369.

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Understandably, globalization and global governance have put enormous pressure on the expansion of global constitutionalism. Their histories, developments, and purposes have some complementary properties as well. Nevertheless, global constitutionalism is not a derivative instrument of globalization and global governance. Rather, global constitutionalism upkeeps globalization and global governance within a legitimacy framework. As Philip Allot claims, it is a meta-level social self-constituting idea that confines public power to the law.23 Additionally, global constitutionalism cogently shapes the nature, scope, and course of globalization and global governance with the combination of five functions bolstered by three formative features. At its core, as the designer of the rules-based system at the global level, global constitutionalism settles the power relationships between institutional authorities and the rights of their subjects, at the international, regional, and bilateral levels. For instance, when the UN Security Council, by its Resolution 554 of August 17, 1984, declared the South African Constitution of 1983 null and void,24 it was a unique experience not only in the history of the UN, but also in the progression of international law. With this assertiveness, international law practically claimed its supremacy over domestic laws.25 Similarly, while addressing 23  See Philip Allot, The Health of Nations: Society and Law Beyond the State Kindle Loc. 3771 (Cambridge University Press, 2002). 24  UN GA Res. 395(V) of Dec. 2, 1950, denounced the policy of apartheid; UN SC Res. 134 of April 1, 1960, called upon the South African government to abandon the policies of apartheid; UN SC Res. 181 of Nov. 4, 1963, called upon all States to cease the sale and shipment of arms, which was turned into the arms embargo on Nov. 4, 1977; UN GA Res. 1899(XVIII) imposed oil sanctions against South Africa; UN GA on Dec. 2, 1968, requested all States to suspend cultural and educational exchanges; UN GA Res. 3068(XXVIII) approved the International Convention on the Suppression and Punishment of the Crime of Apartheid, which came into force on July 18, 1976; UN SC Res. 554 of August 17, 1984, remarkably declared the South African Constitution of 1983 as racist and thus, null and void; UN GA on Dec. 14, 1989, adopted a resolution calling for negotiations to end apartheid and establish a non-racial democracy in South Africa through its Res. A/RES/S16/1; UN GA Res. 48/1 of Oct. 8, 1993, requested States to terminate the embargo and restore economic relations with South Africa. 25  The SC Resolution 554 of August 17, 1984, declaring the 1983 Constitution of South Africa null and void said, “Declares that the so-called ‘new constitution’ is contrary to the principles of the Charter of the United Nations, that the results of the referendum of 2 November 1983 are of no validity whatsoever and that the enforcement of the ‘new constitution’ will further aggravate the already explosive situation prevailing inside apartheid South Africa. Strongly rejects and declares as null and void the so-called ‘new constitution’ and the ‘elections’ . . . as well as all insidious maneuvers by the racist minority regime of South Africa further to entrench white minority rule and apartheid.”

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the issue of the harmony of domestic legal measures with international law, the U.S. Supreme Court in 2006 declared the inconsistency of the executive order of the U.S. President on establishing a military tribunal to try Guantanamo Bay detainees. The U.S. Supreme Court ruled that the military commission lacked the power to try a case because its structure and procedures violated the common Article 3 of the Geneva Convention of 1949.26 Further, the 2013 prosecution of a Nepali army officer in the United Kingdom, by invoking the universal jurisdiction against the 2005 violation of the 1984 Convention Against Torture (CAT),27 which occurred in Nepal, shows how international law is gaining authority over domestic laws and activities carried out at the domestic level. These are only a few examples that show how global constitutionalism enables international laws to consolidate human aspirations for rules-based relationships, at national and international levels. Looking at the above examples and the experience of the collective use of force from the Korean War to the ‘No Fly Zones’ operation in Libya, the war against terrorism in Mali, and the Gulf Cooperation Council’s engagement in the political transition in Yemen,28 it can be posited that the UN Charter has acted as of a global constitution seems attractive, while inducing a problematic proposition. From the experience of domestic constitutions, this chapter finds that a domestic constitution incorporates six features of ­constitutionalism29 that are correspondingly applicable at the international level: a constitution sets the hierarchy of laws, ensures its supremacy over all other domestic laws, separates power among state organs and establishes a mechanism for the checks and balances of power, encompasses a limited government, defines the nature of a legal system, and institutionalizes judicial review.30 26  See Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense, 548 U.S. 557 (2006). 27  See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. In short, this convention is called Convention Against Torture (CAT). A General Assembly Resolution 39/46, December 10, 1984, adopted the CAT, UN Doc. A/39/51 (1984), and the CAT has entered into force on June 26, 1987, in accordance with Article 27(1). As of October 21, 2015, the CAT has 158 Parties. 28  See the Security Council Resolution S/RES/2216 of April 14, 2015. The Security Council commends the engagement of the Gulf Cooperation Council, led by Saudi Arab in Yemen. 29  It should be clear that all constitutions do not incorporate the features of constitutionalism at the same level. Some constitutions reflect all these six features of c­ onstitutionalism, whereas, some constitutions might have only few of them or none. For example, Article 5 of the Chinese Constitution provides on the supremacy of the constitution. However, it does not recognize the power of judicial review of the courts. Instead, allows the political wings of the Communist Party of China to control the courts. 30  Not all constitutions have incorporated judicial review. For example, China does not have a system of judicial review. Similarly, the United Kingdom has historically exercised

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Some of these six features do not seem incongruent with the UN Charter. For example, international law does not feed hierarchy, except the recognition of the primacy of jus cogens over any body of international law including the UN Charter. As a result, different bodies of international laws retain autonomy, as they are produced with the free consent of sovereign states. Consequently, the fragmented bodies of international law decline to subsist in a hierarchical order in the international legal system. Doyle acknowledges that not all international laws are subject to the UN Charter nor is the Charter the legal source of all international laws.31 Moreover, article 53 of the Vienna Convention on the Law of Treaties (VCLT) notes that the UN Charter should neither be the only body of higher treaty among international laws nor serve as the sole repository of peremptory rules. Instead, it recognizes the presence of peremptory norms generally existing in different fragmented bodies of international laws as well.32 As a result, neither the ICJ nor the Security Council or other UN organs have the power to test the compatibility and declare any fragmented body of international laws ultra vires to the UN Charter. Some argue, however, that Article 103 of the UN Charter and Article 30.1 of the VCLT satisfy the criteria of the supremacy of the UN Charter over all other international laws.33

j­udicial review for administrative actions, but not for legislative actions. However, with the development of the European Court of Human Rights, Human Rights Act in the UK, and the WTO, legislative actions have also been reviewed in recent days. By analyzing the judicial review system in the UK, Eric C. Ip observes that, “The judicial review of primary legislation is different from the judicial review of administrative action, to which the English courts have long been accustomed. Before passage of the HRA there had been only a few cases in which it might be said that the Judicial House of Lords had exercised some form of judicial review of Acts of Parliament. For example, in R v Secretary of State for Transport, ex parte Factortame Limited [1991] AC 603 and R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1, the Law Lords asserted the power to ‘‘disapply’’ Acts of Parliament that breach European Union directives. However, such cases are in many ways really about confirmation of the supremacy of European Union law over relevant aspects of UK domestic law, not the application of domestic constitutional principles to review the merits of Parliamentary enactments. Furthermore, these decisions, unlike those issued under the HRA, have not triggered any sustained wave of judicial review of legislation on European Union law grounds.” See Eric C. Ip, The Judicial Review of Legislation in the United Kingdom: a Public Choice Analysis, 37 European Journal of Law and Economics 221, 221–247 (2014). 31  See Doyle, supra note Dialectics of Global Constitution, at 114. 32  Article 53 of the VCLT provides that, “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law . . .” 33  See Bardo Fassbender, Rediscovering a Forgoten Constitution: Notes on the place of the UN Charter in the International Legal Order, in supra note Ruling the World, at 141.

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Chapter 1

Examining Article 103 of the UN Charter34 and Article 30.1 of the VCLT jointly35 allows at least four propositions to be drawn. First, the UN Charter prevails over other international agreements if they conflict on ‘the same subject matter,’ but not beyond. However, there is no clarity as to whether the Charter rules prevail over special rules of international law.36 Second, the supremacy of Article 103 is limited to the issues of obligations. The legal terms ‘rights’ and ‘obligations’ or ‘duties’ are conceptually different and cannot replace each other. They are correlative and should exist in parallel.37 Nonetheless, Article 103 is silent about rights. This silence logically indicates the validity of rights enshrined in other treaties as beyond the adjudicatory scope of Article 103. Third, owing to the use of both correlative terms—rights and obligations—by the VCLT, perhaps Article 103 could be understood in this way. Still, by applying the rule of lex posteriori, the UN Charter should be compatible with the later rules of international law.38 Fourth, if the later treaties acknowledge the primacy of another treaty (e.g. the UN Charter), Article 103 may be applied in toto.39 In this regard, Article XXI(c)40 of the GATT, Article XIVbis 1(c)41 of 34  Article 103 of the UN Charter provides that, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 35  Article 30.1 of the VCLT provides that, “Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.” 36  See B. Simma, D. Khan, G. Nolte, & A. Paulus, The Charter of the United Nations: A Commentary 2117 (Oxford University Press, 3rd, ed., vol. II, 2012). The authors argue that Article 103 of the Charter suppresses the lex specialis principles when the special rule modifies, overrules, or sets aside the general rule. Further, they also claim that Article 103 will not overrule those lex specialis if they simply concretize or apply general rules. 37  See generally Hohfeld, supra note Some Fundamental Legal Conceptions. 38  Article 30.3 of the VCLT provides that, “When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.” 39  Article 30.2 of the VCLT provides that, “When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.” 40  Article XXI (c) of the General Agreement on Tariffs and Trade, 1947/1994, provides that, “Nothing in this Agreement shall be construed to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.” 41  Article XIVbis 18 (c) of the General Agreements on Trade in Services (GATS), 1994, provides the same as provided by the GATT Article XXI(c).

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the GATS, and Article 73(c)42 of the TRIPS can be taken as examples. In other words, the WTO provisions yield to the UN Charter only on matters of peace and security. Thus, the supremacy under Article 103 is of limited and specific scope only. In short, the UN Charter fails in warranting the first two of the six features of constitutionalism noted above: setting hierarchy among international laws, and ensuring its supremacy over all other fragmented international laws, including jus cogens. However, as deliberated above, including the action of declaring the 1983 South African Constitution null and void, the UN Charter ensures its supremacy over domestic laws and legal systems.43 The state of separation, checks, and balances of powers among the different organs of the UN has also been suitably institutionalized. The powers of the organs are limited to their authority specified by the Charter. Moreover, the powers of member governments are also limited and are consequently required to respect and comply with the Charter rules. However, the ICJ lacks the power of judicial review, unlike the WTO Dispute Settlement Body (DSB), which exercises authority in testing the compatibility of domestic laws with the WTO rules. Overall, the UN Charter retains the status of a constitution in the areas covered by its rules, but it is not the only constitution of all international laws. As international law is highly fragmented, consequently there exist a number of treaties, each ­exhibiting all or most of the constitutional features. In short, the plurality of constitutions at the international level is the reality, united by the presence of global constitutionalism, which sufficiently refutes the instrumentalist tradition. 1.2.2 Inter-disciplinarist Tradition One of the most succinct observations depicts global constitutionalism as the “intersection of law, politics, and ethics,”44 which does not only pledge a normative framework of global constitutionalism, but also exposes its vulnerability and erroneousness. This approach suffers from three shortcomings. 42  Article 73 (c) of the General Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), 1994, also provides the same as provided by the GATT Article XXXI (c). 43  However, the U.S. Supreme Court’s approach to the Avena case provides a counterproductive practice. The case of Medellin v. Texas, 554 U.S. 491 (2008) decided by the U.S. Supreme Court on August 5, 2008 presents an inconvenient approach to the implementation of ICJ decision. In this case, the U.S. Supreme Court held that the ICJ decision on the Avena case had no binding effect under the U.S. federal law unless the Congress enacted a domestic law to implement the decisions of the ICJ. Moreover, the Supreme Court also declared the initiatives of the U.S. President to implement the Avena judgment as not binding to the U.S. Federal Courts. 44  See Weiner and Others, supra note Global Constitutionalism, at 2.

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Chapter 1

First, it ignores the distinctive characteristics and roles of jural relations as postulated by Hohfeld. The realm of global constitutionalism without jural relations mislays legitimacy, authority, and validity. Second, instead of freeing the science of law from alien elements, as claimed by Kelsen,45 the interdisciplinary approach of situating law within the penumbra of other disciplines undermines the core qualities of the science of law. Third, this approach also discounts the boundary between normative standards and the positive realm. Fundamentally, beginning of positive standards marks the end of the normative ones. In other words, where normative standards reign, positive standards typically do not exist. Thus, when both exist they tend to conflict, whereby the positive standards prevail over the normative ones. It is indicative of these perspectives that the interdisciplinary approach essentially neglects these dynamics. Inter-disciplinary collaboration is indubitably a powerful tool in understanding social issues. Their significance in the process of transmutation of normative standards into positive standards is undeniable. Nevertheless, an overarching extension of the inter-disciplinary approach resultantly coalesces the normative and positive realms without appreciating their distinctions. Hohfeld, therefore, justifies the need for distinctions. He argues that, without such distinctions, there would be a ‘boundary conflict’ between legal and non-legal concepts. He proposes a methodology of jural relations for the separation of legal from non-legal concepts to overcome the predation of law by political, moral, sociological, and other normative concepts. A normative standard is a moral view, which is an extremely complex structure of principles, ideals, and precepts involving thought, conducts, feelings, justifications, and ­ideologies.46 The interdisciplinary approach offers reasoning or the ‘ought’ perspective in Kelsenian terms, while failing to provide jural relations examinable in Hohfeldian terms (jural correlatives): right-duty, privilege-no-right, power-liability, and immunity-disability.47 The question of what factors cause the distinction between normative and jural claims cannot be answered purely on the basis of the eight Hohfeldian correlatives alone because they are also subject to normative assessment in the form of political, moral, and social claims. Against this background, Hans Kelsen, H. L. A. Hart, and Joseph Raz, among others, have partly answered this question. Kelsen rigorously explained that legal concepts are different from

45  See Kelsen, supra note Pure Theory, at 1. 46  See Rawls, supra note A Theory of Justice, at 404. 47  See Hohfeld, supra note Fundamental Legal Conceptions, at 710.

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other concepts and, unless the conceptual purity of law is maintained, law cannot be understood in its totality. He thus analyzed two types of norms: a positive norm, i.e. is, and a normative norm, i.e. ought. Further, he recognized authoritativeness and validity as those qualities that separate the two. This Kelsenian approach implies that the interdisciplinary approach disregards the ‘is’ aspect of global constitutionalism by diluting it with the ‘ought’. Hart subscribed to the idea of internal point of view of officials to distinguish law from other normative concepts. However, his idea of the ‘internal point of view’48 opens the Pandora’s box of officials by failing to specify who in fact determines the internal point of view. Hart does not answer the question of why the ‘internal point of view’ of officials is more important than the formal legitimacy process in identifying rules. He also overlooks the possibility of conflicts and contradictions among the officials’ internal points of views and does not offer any methodology for solving the conflict. Joseph Raz formulates the idea of exclusionary reason implicit in authority as the standard that distinguishes law from normative standards. The Razian idea of ‘exclusionary ­reason’49 is another version that essentially fine-tunes the Austinian concept of command. Nevertheless, it provides an important benchmark, albeit partially. Hohfeldian, Kelsenian, Hartian, and Razian approaches are valuable in signifying the importance of legal concepts, as well as in distinguishing them from normative concepts. Yet, they have all neglected the core of the issues: how do normative and positive standards correlate with each other? How could they be separated from each other via distinct identities? What determines the distinction? If they are in conflict, how should the conflict be resolved? A clear answer to these questions is necessary if the strengths and weaknesses of the inter-disciplinary approach are to be understood in its deeper epistemology.

48  See H. L. A. Hart, The Concept of Law 89–91, 242–243 (Oxford University Press, 3rd ed., 2012). 49  See Joseph Raz, Ethics in Public Domain 212–217 (Clarendon Press, reprint 1996). Raz mentions that, “. . . law claims authority for itself shows that it is capable of having authority.” See also Kenneth E. Himma, Law’s Claim of Legitimate Authority, in Hart’s Postscript: Essays on the Postscript to the Concept of Law 273–274, pp. 271–310 (Jules Coleman ed., Oxford University Press, reprint 2005). Himma cites Raz, which is as following, “The [authority’s] decision is . . . a reason for action. They ought to do as he says because he says so. . . . [But] it is not just another reason to be added to others, a reason to stand alongside the others when one reckons which way is better supported by reason. . . . The decision is also meant to replace the reasons on which it depends.”

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Chapter 1

Normative standards, as interdisciplinary social facts, govern human life and relationships as moral or ethical beliefs or standards. They do not retain formal legitimacy, are not supported by the authority of the state in enforcing them, and are Chart 4 Linkages and distinctions between normative and positive standards. not tested for validity by the courts. However, through the legitimizing process, they might be transformed into positive standards by application of the three formative features: legitimacy, authority, and validity. Normative standards, as social facts, provide valuable inputs in designing positive standards through the legitimization process, which is the genuine interplay and correlation between normative and positive standards. When they are translated into positive standards, they may still provide background information in understanding their traveux preparatoires, but cannot feature positive standards with moral or ethical denotation. As mentioned above, legitimacy, authority, and validity are the factors that indubitably distinguish the normative and positive standards. Absence of any of these three formative features will conjointly derogate positive standards to the premise of normative standards. In addition, any normative standard being introduced with these formative features assumes a completely new description related to the positive standards. Without the features of legitimacy, authority, and validity in place, the process by which the concept of global constitutionalism becomes deficient of the five functional characteristics is discussed in the third section of this chapter. Therefore, it can be argued that as the interdisciplinary approach fails to explicate these three formative features, it also fails to appreciate the conceptual contours and modus operandi of global constitutionalism. 1.2.3 A Contested Constitutionalist Tradition The constitutionalist tradition explains constitutionalism by using constitution as a reference. It thus fails to understand a constitution and constitutionalism as two distinct but complementary concepts. Nonetheless, it recognizes some common ideas of constitutionalism, such as the supremacy of a constitution, the separation of powers, the checks and balances of power, a limited government, the democratic legitimacy of law and government, judicial review,

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and the rule of law.50 However, with this reductionist explanatory framework, the constitutionalist tradition is supposed to overcome at least four challenges discussed below. First, conventionally, the idea of a constitution is linked purely with the concept of statehood and sovereignty. Against this background, critics argue that, if constitutionalization of international law entails its hierarchy over domestic laws, it breeds irreconcilability with state sovereignty.51 Second, as discussed above, there is no single document having the authority of a constitution under the international legal system. Thus, a problem persists as to how constitutionalization could succeed and constitutionalism be institutionalized without the existence of any specific constitution at the global level. Third, critics also observe that, if all international laws are constitutionalized or constitutionally infused, nothing is constitutional.52 This criticism seems persuasive against the backdrop of the plurality of international laws and legal systems that have not yet been legitimized in any hierarchical order among the different branches of international law. Fourth, in relation to domestic law, each branch or body of international law maintains supremacy. As a result, there exists a plurality of supremacy without any single or basic norm (­grundnorm). At the same time, the idea and content of supremacy may bootstrap a monocivilizational hegemony, most notably the European bias built into it.53 This hegemony may also undermine the aspirations of developing countries.54 The constitutionalist approach, such as the idea of three ‘C’s—a constitution, constitutionalization, and constitutionalism—suggested by Wiener and others, has added value in expounding the concept of global constitutionalism to a certain extent. Yet, it fails to address the four challenges mentioned above. In fact, they themselves have come to a conclusion that, as a concept, ‘global constitutionalism’ remains confusing, and the “purposes and practices of global constitutionalism are not altogether straightforward.”55 They 50  See Peter Dobner & Martin Loughlin, The Twilight of Constitutionalism, Kindle Loc. 137 (Oxford University Press, 2010). 51  See Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism vii (Cambridge University Press, 2012). 52  See Anne Peters, Conclusions, in The Constitutionalization of International Law 345 (J. Klabbers, A. Peters, & G. Ulfstein eds., Oxford University Press, 2011). 53  Id. 54  See Carole Harlow, Global Administrative Law: The Quest for Principles and Values, 17 European Journal of International Law, 187–214 (2006). 55  See Wiener and Others, supra note Global Constitutionalism, at 4.

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use the first ‘C’ featuring global constitutionalism in reference to three functional aspects of a constitution—a keeper in check of politics,56 a dispute solver,57 and a reflection of the constituent power.58 These three features are not only insufficient, but also blur the distinction between a constitution, constitutionalism, and law. The second ‘C’, used to explain ‘constitutionalization’ as a process, observes “institutional arrangements in the non-constitutional global realm’ as taking on a ‘constitutional quality.”59 However, while a complete definition of constitutionalization is still elusive, its quality remains to be ­established.60 This emphasizes the non-constitutional global realm, rather than the constitutional quality. Moreover, the designation of global constitutionalism as the ‘academic artifact’ derogates the third ‘C’ away from the idea of ‘modern constitutionalism,’ ‘constitutionalism beyond the state,’ or postnational constitutionalism.61 For example, the United Kingdom, Israel, and New Zealand do not have written constitutions. Does this imply that they lack constitutionalism as well? On the other hand, North Korea and China have written constitutions. Can we say they have constitutionalism too? If constitutionalism is the basic principle(s) or ideology applicable in guiding the making of a constitution and forming contents of a constitution, then North Korea and China have both constitutions and constitutionalism. However, their constitutions have been guided by basic political ideologies that disallow questioning the validity of their legal 56  See generally Francis Snyder, New Direction in European Community Law (Fred B. Rothman & Co., 1990); see also Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and Diversity, in Constitutionalism, Identity, Difference, and Legitimacy 3–38 (Michel Rosenfeld ed., Duke University Press, 1994); Ulrich K. Preuss, Constitutional Powermaking of the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution, in Constitutionalism, Identity, Difference, and Legitimacy 143–164 (Michel Rosenfeld ed., Duke University Press, 1994). 57  See Alec Stone Sweet, Judicialization and the Construction of Governance, 32 Comparative Political Studies 147–184 (1999). 58  See James Donald Galloway, Citizenship: A Jurisprudential Paradox, in European Citizenship: An Institutional Challenge 65–82 (Massimo L. Torre ed., Kluwer Law International, 1998). 59  See Wiener and Others, supra note Global Constitutionalism, at 5. 60  Id. 61  See generally James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press 1995); see also Jo Shaw, Postnational Constitutionalism in the European Union, 6 Journal of European Public Policy 579–597 (1999); J. H. H. Weiler, The Constitution of Europe: Do the New Clothes Have an Emperor? (Cambridge University Press, 1999); Neil Walker, Flexibility within a Metaconstitutional Frame: Reflections on the Future of Legal Authority in Europe, in Constitutional Change in the EU: From Universality to Flexibility (Gráinne de Búrca & Joanne Scott eds., Hart Publishing, 2000).

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and political authority. On the other hand, among others, the constitutions of the United States, Japan, and India allow the validity of all laws and authority to be tested. Likewise, the United Kingdom, Israel, and New Zealand, to a certain extent, also allow the validity of their laws and authority to be tested. Specifically, China can be taken as one of the more interesting examples of this phenomenon. China has a written constitution, as well as legitimate and enforceable statutes. These are compatible with the Chinese Constitution. Many Chinese laws have contents similar to the contents of their counterpart laws in many democratic societies. Some of the criminal, commercial, or business laws, among others, can be taken as examples. China allows for private lawmaking through contractual relationships. As in other countries, it has the judiciary to decide legal disputes. Many of its laws are market-friendly as well. The stable political environment is congenial to the growth of the market and for promoting foreign investment. It is a hub of foreign investment and has secured the position of the second-largest economy in the world.62 In a short span of time, China has also reduced poverty from over sixty percent to twelve percent,63 which is admirable. Nevertheless, can one claim that China is an example of a country with constitutionalism? Article 5 of the 1982 Chinese Constitution provides that “The state upholds the uniformity and dignity of the socialist legal system. No law or administrative or local rules and regulations shall contravene the constitution. All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the constitution and the law. All acts in violation of the constitution and the law must be investigated. No organ­izations or individuals may enjoy the privilege of being above the constitution and the law.” Reading Article 5 of the Chinese Constitution, one can observe that China upholds the supremacy of the constitution. However, when it is read with Article 1 of the Chinese Constitution, the supremacy of the socialist ideology becomes apparent. Indeed, “The People’s Republic of China is a socialist 62  See World Bank, China Overview, available at http://www.worldbank.org/en/country/ china/overview, visited on March 24, 2015, World Bank (2014); See also UNCTAD, World Investment Report, UN, available at http://unctad.org/en/PublicationsLibrary/wir2013_ en.pdf, visited on March 24, 2015, UNCTAD (2013); WTO, World Trade Report, WTO, available at http://www.wto.org/english/res_e/booksp_e/world_trade_report13_e.pdf, visited on March 24, 2015, WTO (2013). 63  See UN, The Millennium Development Goals Report, available at http://www.un.org/­ millenniumgoals/pdf/report-2013/mdg-report-2013-english.pdf, visited on March 24, 2015, (2013).

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state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants . . .” destroys this image instantly. The socialist system is the basic system of the People’s Republic of China and its sabotage by any organization or individual is prohibited. Article 3 of the Chinese Constitution further stipulates that, “. . . All administrative, judicial and pro-curatorial organs of the state are created by the people’s congresses to which they are responsible and under whose supervision they operate . . . .” The Preamble of the Constitution makes it clear that China is governed under the leadership of the Communist Party of China and the guidance of MarxismLeninism, Mao Zedong Thought, and Deng Xiaoping Theory, with a proletariat dictatorship. Reading these constitutional provisions, it is clear that the Chinese legal system is determined by the political ideology adopted by the Communist Party of China. In short, the Chinese Constitution is an ideologically deterministic constitution. The Communist Party (practically speaking, the only political party in China) holds all power, including political leadership in all state apparatuses. Hence, all laws should be compatible with the socialistic conception. Moreover, laws can be made or amended to serve the political ideology. Unfortunately, the judiciary in China is not independent and does not have the power of judicial review. Strikingly, the core concept of the separation of powers, which includes checks and balances of power, is absent. Against this background, one can comfortably conclude that China, even with the adoption of a written constitution, lacks constitutionalism. The concept of constitutionalism drawn from its features and modus ­operandi thus indicates that constitutionalism can even be found in a legal system having no specific written constitution. In addition, constitutionalism might be lacking despite the presence of a written constitution. Consequently, in a more specific context, constitutionalism subsists at the core of the rule of law. The same idea of constitutionalism metamorphosed and applied to international laws and international legal systems constitutes the concept of global constitutionalism beyond borders and territorial nexus, which is discussed in the following section. Yet, there are those who mistakenly argue that without a constitution, constitutionalism cannot exist. That is, in the absence of a specific constitution at the international level, any concept of global constitutionalism is a misnomer. Moreover, the mainstream positivist jurists are also deeply mired in grave confusion about the idea of constitution itself. For them, a constitution is merely

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a positive morality.64 In this sense, a constitution does not have a positive feature, but rather a normative standard only. Hence, before providing a positivistic concept of global constitutionalism, the confusion on this normative nature of a constitution needs to be dispelled. Mainstream positivism reduces the compliance to the hierarchy of law and the observance of the prescribed processes either into the ‘internal point of view’65 or to the exercise of authority, which is peremptory in status66 and thus a reason in itself.67 This resonates with the Hobbesian assertion that “It is not wisdom, but authority that makes a law . . . none can make a law but he that hath the legislative power.”68 In particular, when the hierarchy of law comes into play, the mainstream positivists often contest the positivity and supremacy of the constitution. For example, along with Austin, Hart also observed constitutional issues simply involving moral arguments.69 Although criticizing and reformulating Austin’s theory of law, Hart insists that there are no legal limits on the legislative power of a sovereign.70 Hart further claims that, “. . . a constitution which effectively restricts the legislative powers of the supreme legislature in the system does not do so by imposing duties on the legislature not to attempt to legislate in certain ways; instead it provides that any such purported legislation shall be void. It imposes not legal duties but legal disabilities.”71 As the mainstream legal positivism erroneously tried to advocate politics free from law,72 it has also mistakenly interpreted constitution based upon normative grounds. In this regard, the following three points are sufficient 64  See John Austin, The Province of Jurisprudence Determined 242 (Great Mind Series, Prometheus Books, 2000/1832). 65  See Hart, supra note The Concept of Law, at 89. 66  See Raz, supra note Ethics, at 212. 67  Id., at 217. 68  See Brian H. Bix, A Dictionary of Legal Theory 90 (Oxford University Press, reprinted 2009). 69  See Himma, supra note Laws Claim, at 272. 70  See Hart, supra note The Concept of Law, pp. 66–69. 71  Id., at 69. 72  See generally Jurgen Habermas, Between Naturalism and Religion: Philosophical Essays 103 (Polity, 2008). Habermas provides an interesting discussion on the relationship between law and politics. Habermas states that, “. . . the constitution that the citizens jointly confirm upon themselves rather than the domestication of an existing state power, for the latter is supposed to be first created in the course of founding a democratic constitution. A constituted (rather than merely a constitutionally tamed) state power is legally regulated to tis very core, so that law permeates political power through and through . . .”

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to dispel the confusion metastasized by mainstream positivism in contesting constitutionalism. First, the minimum progressions in four areas—the EU, the WTO, the Human Rights Act of the UK,73 and the Jackson74 ruling—among others, have not only eroded the traditional concept of parliamentary supremacy in the United Kingdom, but have also established the supremacy of the rule of law in the form constitutionalism. These succinct and sufficient developments conclusively discount the obsolete concept adopted by mainstream legal positivists on the idea of constitution. Second, irrespective of traditional divisions, almost all legal systems adopt or, as a minimum, recognize the prescriptions of a constitution as the supreme legal standard in the hierarchy of law. With the exception of a constitution in a rule by law system, countries adopting the concept of the rule of law attribute constitutionalism as the source of legitimacy, authority, and validity. Consequently, all laws are required to be harmonious and compatible within that realm of hierarchy. The very idea of legitimacy, authority, and validity has been transmuted in requiring domestic laws to be compatible and harmonious with international laws, which elucidates the significance of the concept of global constitutionalism. Third, a constitution is best reflected in its role prescribing not only those rules that are amenable to regular legislative processes, but also those entrenched as constitutionalism, such as judicial review, in testing the validity of the issues related to legitimacy and authority. Today, the concept of testing validity is not confined to domestic legal systems only, as international legal systems are also increasingly adopting the same concept by authorizing international institutions, such as the WTO dispute settlement body and the European Court of Justice, to test the validity of domestic laws. If domestic laws are found to be incompatible with international laws, member c­ ountries are required to harmonize their domestic rules and actions within the international framework.75 This validity-testing mechanism, galvanized by the requirements of harmony and compatibility at the global level, is what this 73  See generally Alan Brady, Proportionality and Deference under the UK Human Rights Act (Cambridge University Press, 2012); see also Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2010). 74  See generally Chris McCorkindale & Nick McKerrell, Accessing the Relationship between Legislative and Judicial Supremacy in the UK: Parliament and the Rule of Law after Jackson, 101 the Round Table 341–352 (2012). 75  For example, Article 1.4 of the UN Charter, Article XVI.4 of the WTO Agreement, Article 2.1 of the ICESCR, & Article 2.2 of the ICCPR require Members to adopt measures including legislation to harmonize their laws, policies, and administrative measures.

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author would term one of the important functions of global constitutionalism, which is discussed in detail in the following section. In short, as discussed above, constitutionalism exists independent of a constitution. Consequently, constitutionalism, at both domestic and global level, cannot be made subject to a constitution or a constitutionalist explanation. Therefore, the constitutionalist explanation of global constitutionalism is partial and contested. 1.3

Jus Cogens and the Positivist Explanation of Global Constitutionalism

One of the main arguments of this chapter is that the three formative features—legitimacy authority, and validity—and five modi operandi (as shown in Chart 5)—unity, harmony, legalization, convergence, and supremacy— unambiguously exhibit the specific qualities of global constitutionalism. The act of uniting international law(s) and international legal system(s) in shaping the course of international relations reflects the foremost function of global constitutionalism. Conceiving the idea of harmony, it demands that domestic laws, policies, and administrative practices be compatible with international laws. It further legalizes different branches of international laws (plurality of international laws) without any specific hierarchy in place, except the rule of jus cogens. As a result of these three functions, global constitutionalism promotes a cross-county convergence among domestic laws and legal systems. Finally, it progressively emulates international laws to assume the position of supremacy over domestic laws, including constitution. Against this background, global constitutionalism reflects not only the academic artifact, but also the actual positivistic realm of international relations.

Chart 5

A positive explanation of global constitutionalism.

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In the following divisions, this chapter analyzes the formative features and modus operandi of global constitutionalism via specific cases and examples from the application of Chapter VII of the UN Charter, International Criminal Court, human rights and environmental conventions, and the WTO. Through specific examples from these different bodies of international law, it is shown that in managing relations among these bodies (plurality of international laws), there indeed exists no single constitution at all. Nearly all these bodies of international law retain equal status. Despite this fact, constitutionalism unites the pluralistic bodies of international law and legal systems into a coherent paradigm. In contrast, in managing its relations with domestic laws and legal systems, while including features of constitutionalism, international laws retain supremacy over domestic laws. In this respect, international laws uphold constitutionalism. 1.3.1 Three Formative Features of Global Constitutionalism The three formative features and five functions of global constitutionalism, as shown in Chart 5 above, are also elaborated in Chart 6 below to further clarify its forms and/or levels. The bilateral treaties, including free trade area agreements (FTAs), resonate with the global constitutionalism at the micro-level, which in comparison to constitutionalism at regional and multilateral levels produces a weak form of constitutionalism. At the macro-level, regionalism, especially the European Union model, reflects all the features and functions of global constitutionalism. Still, not all regional models incorporate the features and functions of global constitutionalism as the EU does. In addition, some variations exist even at the multilateral level. Overall, at the meta-level, the idea of multilateralism reflects almost all features and functions of global constitutionalism. For analytical convenience, each of these formative features is divided into two important conceptual or functional subsets (six in total). For example, consent and process ensure legitimacy, harmony and enforceability constitute authority, whereas supremacy and positivity institutionalize validity.

Chart 6

Forms and features of global constitutionalism.

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At the core of the positive method, global constitutionalism legitimizes ­international laws and legal systems. For example, similar to domestic laws, international laws are also the products of the exhaustion of a legitimacy apparatus. Adherence to the hierarchy of law, i.e. jus cogens, in the context of international law, and the observance of prescribed procedures—including negotiation, signature, and ratification—comprise the realization of proc­ esses. At the same time, the voluntary participation of sovereign states, from the negotiations stage to the ratification of treaties, refers to the democratic representation in securing those states’ consent in the making of treaties. Importantly, this legitimization process ensures the positivity of rules. In other words, with the accomplishment of the legitimization process, the rules of international law are as positive as the rules of domestic law. However, there is no single perspective on the explanation and understanding of the concept of legitimacy. Nonetheless, some of these perspectives can be divided into five broad categories: domination,76 consent,77 will,78 power relationship,79 and constitutionalist framework.80 Despite ­substantial

76  With the approach of domination, legitimacy is often theorized as a command or authority that preempts obedience from the governed. The obedience might be derived either by consent or threat. The tool of obedience might be an order or a law. Also, within this category, a visible number of variations may exist. John Austin’s theory of command, Max Weber’s theory of legitimization, Carl Schmitt’s theory of legality and legitimacy, and Joseph Raz’s theory of authority can be taken as some of the representative theories under this category. 77  Ideas from tacit consent of John Locke to the obligation of consent of Hobbes and from the original position of John Rawls to the internal point of view of H. L. A. Hart can be associated within this brand. 78  Among others, Rousseau considers the laws manufactured by a government as the representative tools of a General Will directed to achieving the shared good of the whole and reinforcing the values of the state. For details see Alan Cromartie, Legitimacy, in Political Concepts 93–104 (Richard Bellamy & Andrew Mason eds., Manchester University Press, 2003). 79  This category also includes different concepts of legitimacy ranging from John Rawls’s theory of justice and political liberalism to Beetham’s theory of power relationship and the realists’ idea of determinism by power. 80  With the emergence of the concept of global constitutionalism scholars have developed a number of perspectives in explaining legitimacy. Among many such explanations Kumm uses constitutionalist framework to assess, understand, and explain the concept and functions of legitimacy under international law. Kumm’s constitutionalist framework includes four important components: legality, subsidiarity, procedure, & rights. For details see Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and Beyond the State, in supra note Ruling the World, pp. 258–325.

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d­ ifferences among these perspectives, most are commonly fraught with the error of theorizing legitimacy against the backdrop of authority. In other words, they have failed to identify and theorize the distinctions and connections among legitimacy, authority, and validity.81 Legitimization of power, political power in particular, can be considered the greatest challenge, at both domestic and global levels. Perhaps the only credible tool available at both levels in legitimizing power is to transmute power into authority and rights through a legitimization process. The ability to bring power within the framework of authority (institutional power) and rights (personal/individual power) and having the mechanism of validity in place is at the core of constitutionalism itself. This plays out at both the domestic and global levels. Consequently, authority at the global level, fashioned through the instrument of international law, harmonizes the authorities, rights, and duties of its subjects (contextually, this affects both states and individuals) and requires domestic laws and policies to be compatible with international rules. Along with the authority of harmonization, global constitutionalism also offers a system or order through which international laws can be enforced via different administrative and judicial mechanisms at both international and domestic levels. If domestic laws and policies are incompatible with international rules, they can be challenged at the global level before global institutions created and authorized by international law to test the validity of those laws and policies. These institutions, in turn, review the domestic measures (laws, policies, and administrative mechanisms) and require governments to implement the decisions or instructions produced by such institutions at the international level, which entails the supremacy of international law over domestic laws. Not only at the international level, but also at the regional and domestic levels, this practice of testing the compatibility of domestic laws with international laws is becoming more prevalent.82 Despite some skepticism surviving 81  My earlier discussion on the issue of legitimacy, authority and validity might be of the interest. See Surendra Bhandari, Legitimacy, Authority, and Validity of Law: An integrated Approach to Legal Positivism and the Methodology of Welfare Grundnorm, 22 Journal Jurisprudence 117–194 (2014). 82  See Thomas M. Frank & Gregory H. Fox, Transnational Judicial Synergy, in International Law Decisions in National Courts 1–12 (Thomas M. Frank & Gregory H. Fox eds., Transnational Publishers Inc., 1996); see also Lenore Jones, Opinions of the Court of the European Union in National Courts, in International Law Decisions in National Courts 221–246 (Thomas M. Frank & Gregory H. Fox eds., Transnational Publishers Inc., 1996); Holly D. Jarmul, Effect of Decision of Regional Human Rights Tribunal on National Courts,

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to date,83 this simple and lucid apparatus of legitimacy, authority, and validity institutionalizes the positivity of global constitutionalism. 1.3.2 Five Modi Operandi of Global Constitutionalism With the aforementioned three features, global constitutionalism functionally produces five outcomes: unity, legality, harmony, convergence, and hierarchy. Each of these functions and consequences is briefly discussed in the following sub-sections. (a) Unity As of June 1, 2014, there were over 560 major multilateral treaties deposited with the UN Secretary-General. As of July 2013, the collection of all multilateral, regional, and bilateral treaties contained over 200,000 documents published in over 2,700 volumes of the UN Treaty Series (UNTS).84 Relevantly, the question can be raised, “What unites each of these international laws?” A simple and lucid answer comes in the form of global constitutionalism, which is the mechanism that unites all international laws and maintains cooperation among them with its three features discussed above. In other words, any mechanism that is capable of uniting all international laws and providing legitimacy for their efficient operation falls under the functional rubric of global constitutionalism. Uniquely, all international laws retain equal status. Undeniably, there is no single piece of international law functioning like a constitution at the domestic level by commanding hierarchy. For example, Article 38 of the Statute of the International Court of Justice and the VCLT both succinctly recognize the lack of hierarchy in international law. Moreover, the rule of pacta sunt servanda institutionalizes the concept of ‘free consent’ and ‘good faith’ as the universally accepted standards of international lawmaking.85 Hence, any treaty concluded

in International Law Decisions in National Courts 247–284 (Thomas M. Frank & Gregory H. Fox eds., Transnational Publishers Inc., 1996). 83  See generally Eric A. Posner, The Perils of Global Legalism (The University of Chicago Press, 2009). Posner starkly espouses one of the skeptical views. He considers sovereign equality and universalism as illusions. He argues despite the professed commitments of international law, all nations stand ready to dispense with international agreements when it suits their short or long-term interests. 84  For details visit www.treaties.un.org. 85  See the Preamble, Arts. 1–7 & 26 of the Vienna Convention on the Law of Treaties, adopted on May 22, 1969, and opened for signature on May 23, 1969, entered into force on January 27, 1980, UNTS vol. 1155, at 331.

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without consent is implicitly void.86 Equally, any treaty concluded by fraud or corruption is voidable.87 Moreover, no treaty is permitted to undermine or conflict with the peremptory norm of international law, i.e. jus cogens.88 On the other hand, international treaties that are not in written form do not constitute legal force.89 Every state possesses equal capacity to negotiate and ­conclude a treaty.90 In addition, every state has an obligation not to defeat the object and purpose of a treaty.91 Internal laws cannot be invoked as a justification for refraining from the treaty obligation.92 Unless provided clearly, a treaty is binding upon each party in respect to its entire territory.93 A treaty can become a part of the customary rule of international law and in such fashion applies to a third party as well.94 These rules incorporated by the VCLT are fundamental since they transfuse and operate in uniting all international laws. In other words, all international laws are designed to operate within the framework stipulated by the VCLT rules. Article 38 of the ICJ Statute resolves any ambiguity on the sources of ­international law; however, it does not specifically prescribe the hierarchy of international law.95 Generally, treaties and customary rules of international law are given highest priority among all other sources. Moreover, since the period of the Permanent Court of International Justice (PCIJ), treaty provisions compatible with the rule of jus cogens have been given precedence over customary rules of international law. Three important rules, incorporated in the VCLT and further institutionalized by the practice of the International Court of Justice (ICJ), have profoundly contributed to maintaining the unity of

86  Id., Arts. 51 & 52. 87  Id., Arts. 49 & 50. 88  Id., Arts. 53 & 64. 89  Id., Art. 1. 90  Id., Arts. 6–11. 91  Id., Art. 18. 92  Id., Arts. 27 & 46. 93  Id., Art. 29. 94  Id., Art. 38. Article 38 of the VCLT provides that, “Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third States as a customary rule of international law, recognized as such.” See also Article 2(6) of the UN Charter, which provides that, “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.” 95  See Michael Akehurst, The Hierarchy of the Sources of International Law, 47 British Yearbook of International Law 273–285 (1975).

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international laws. Akehurst specifies them as: lex superior derogate inferiori,96 lex posterior derogate priori,97 and lex specialist derogate generalis.98 In practice, this development suggests, how without any hierarchy, international laws and legal ­systems are united by the rules of global constitutionalism. This development, in particular, indicates that the core aspects of global constitutionalism have already been institutionalized in the domain of international laws and legal systems. (b) Legality As discussed elsewhere in this chapter, international laws do not exist in a single body of law, but are highly diversified and extensive in scope and coverage, which can also be termed as the fragmentation of international law.99 Nonetheless, they are unified. The idea of global constitutionalism operates in providing legality to each body of international law. In this context, a few provisions of the VCLT postulate a succinct benchmark. For example, Article 31(1) of the VCLT recognizes each treaty as equal in its legitimacy, as each treaty should be interpreted not based on hierarchical rules, but “in accordance with the ordinary meaning to be given to the terms of the treaty” with a view to establish the ‘object and purpose’ of the treaty, in good faith. Article 6 recognizes the capacity of states in concluding treaties. Article 9 further stipulates that a treaty cannot take place without the consent of states, whereas Article 11 and 12 expound on the obedience to a treaty arising from the very fact of consent. Along with establishing legality of the fragmentation of international law, global constitutionalism also institutionalizes organizational structures to give effect to the treaties. These organizational or institutional structures are independent of each other and vary from one body of treaty to another. For example, the UN Charter has established the General Assembly and Security Council, which function as legislative and executive bodies, while the ICJ functions as a judicial body, followed by a number of specialized agencies that have various roles. The Dispute Settlement Body (DSB) works as a powerful judiciary in the WTO. The General Council operates as the regular legislative body supported by a number of committees, while the Secretariat has a weak executive power in the WTO. The International Criminal Court (ICC) is another example 96  It denotes that in case of conflict, superior sources prevail over other sources. 97  It denotes that in case of conflict, later rules prevail over earlier rules. 98  It denotes that in case of conflict, special rules prevail over general rules. 99  For further details see ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, GA Res. A/CN.4/L.682, April 13, 2006.

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of a powerful international judicial body in relation to international crimes covered by the ICC Statute. However, its Assembly of States is modest, with nominal executive power and the legislative power mainly confined to the role of budget approval. Hence, the applicability of the term ‘fragmentation’ is to the international law is debatable.100 Often, the choices of words used are closely linked to the concepts they carry. For example, ‘fragmentation,’ ‘proliferation,’ ‘diversification,’ ‘expansion,’ ‘autonomous branches,’ or similar other terms might be used interchangeably (Fisher-Lescano & Teabner, 2004). However, at the conceptual level, if all denote specialized and autonomous bodies of international law, then the mere choice of words probably makes no difference. As autonomous bodies of law, in general, they conform to unity in good faith. On occasion, decisions such as Ko Tadi 101 by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICJ decision on the Nicaragua case,102 produce different jurisprudence. However, both of these decisions are equally valid and legitimate since they operate in different domains of international law. This provides an example of how gracefully global constitutionalism legitimizes the fragmentation as well as unites them within the broader framework of international law. (c) Harmony As a result of the institutionalization of global constitutionalism, international laws demand that domestic laws and policies be made harmonious. Despite this requirement, there seem to be two current trends: a soft harmony and a compulsory harmony. Akin to compulsory harmony, under the scheme of soft harmony, the contracting parties or member states are required to ­undertake 100  See R. A. Kolodkin, Fragmentation of International Law? A View from Russia, in Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 224 (R. S. Macdonald & D. M. Johnston eds., Martinus Nijhoff Publishers, 2005). Kolodkin puts a question that, “What is meant by fragmentation of international law? Fragmentation or, at least, its threat is seen as proliferation of international legal rules and institutions, the autonomous character of some international legal regimes and expansion of international law in those areas of relations that were not considered fit for international legal regulations before. Fragmentation is also seen in the regionalization and specialization of international law, in particular, in such areas as human rights and international trade . . .” 101  Prosecutor v. Ko Tadi, IT-94-1-A, July 15, 1999, paras. 116–162. in para. 116 the ICTY resolves that, “A first ground on which the Nicaragua test as such may be held to be unconvincing is based on the very logic of the entire system of international law on State responsibility.” 102  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 14.

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necessary steps, including legislative measures, to harmonize their laws and policies with international law. Yet, unlike compulsory harmony, under soft harmony, the responsibility arising from failures of harmonization is not imposed by judicial decisions in combination with an effective implementation mechanism set in place. A few examples will sufficiently corroborate this proposition. Most human rights conventions (with the exception of the European Convention on Human Rights and other regional human rights conventions) and environmental conventions fall into the soft harmony category. For example, Article 2 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) requires each State Party to give full realization of the rights recognized by taking necessary steps, including the adoption of legislative measure for achieving progressively to the maximum of its available resources. Further, Article 2 of the International Covenant on Civil and Political Rights (ICCPR) requires each State Party to give effect to the rights recognized by taking steps, including legislative measures. Unlike the ICESCR, the ICCPR does not relax this requirement by permitting states to take steps progressively and to the benefit of their available resources. Most of the environmental conventions also require soft harmonization of domestic laws and policies. For example, Article 6 of the Convention on Biological Diversity (CBD) requires each Contracting Party to develop national strategies, plans, and programs to adopt the measures set by the CBD, albeit in accordance with particular conditions and capabilities of the Contracting Party. However, the Cartagena Protocol on Biosafety seems more stringent than the CBD, as it does not permit harmonization to be the subject of the capabilities and particular conditions of a Contracting Party. Article 2 of the Cartagena Protocol requires each Party to take necessary and appropriate legal, administrative, and other measures to implement the Protocol. It also requires each Party to ensure that the development, handling, transport, use, transfer, and release of any living modified organisms (LMOs/GMOs) are undertaken in a manner that prevents or reduces the risks to biological diversity, while also taking into account risks to human health. Distinctively, while these soft instruments aspire toward harmonization, they lack an effective judicial enforcement mechanism comparable to a compulsory harmonization mechanism, such as under the WTO Agreements and the European Court of Human Rights. For example, Article XVI.4103 of the Marrakesh Agreement Establishing the World Trade Organization (WTO) 103  See Agreement Establishing the WTO (Marrakesh Agreement), 1994. Article XVI.4 provides that, “Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.”

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requires each Member to ensure the “conformity of its laws, regulations and administrative procedures” with the WTO Agreements. Under XIV.2104 of the Marrakesh Agreement, each Member of the WTO is required to implement the WTO Agreements. As in a domestic court, Members can challenge laws, policies, and administrative mechanism of other Members at the DSB of the WTO. Through its Panels and Appellate Body processes, the DSB settles disputes by deciding the rights and obligations of Members arising from the WTO Agreements. The rulings of the DSB are implemented if needed by the process of retaliation or the suspension of concessions and compensation. On all occasions, from the very first gasoline case to the most recent decisions, if laws and policies of the Members are declared incompatible with the WTO Agreements, there is a requirement that Members change their laws and policies to ensure compatibility with the WTO requirements. Thus, irrespective of whether harmonization is soft or compulsory, it perforates national borders, calling for new forms of checks and balances. Certainly, sovereign states are no longer as free as they were in the classical historical sense. On the other hand, the process of harmonization is also empowering nations and people in both forms and effects. In much the same way, states have been empowered with the right of international market access, the possibility of wider global peace and cooperation and working toward global welfare. Moreover, individuals are empowered with rights enshrined under international laws, such as human rights that are protected and promoted at the domestic level. If the real sovereigns are the people, in terms of wider possibility of rights and global access, people have been empowered by the system of global constitutionalism. In this sense, the perforation of national borders has been transmuted in creating a new setting and possibility beyond borders. However, as it is buffeted by a number of real limitations, this development should not be taken up with over-optimism. (d) Hierarchy In terms of intra-context hierarchical order (i.e. among international laws), as discussed above, international law has adopted a unique system of horizontal unity. However, with respect to the inter-context hierarchy, i.e. relationship between international laws and domestic laws, a vertical system of unity and 104  Id., Article XIV.2 provides that, “A Member which accepts this Agreement after its entry into force shall implement those concessions and obligations in the Multilateral Trade Agreements that are to be implemented over a period of time starting with the entry into force of this Agreement as if it had accepted this Agreement on the date of its entry into force.”

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hierarchy has already been institutionalized. This hierarchy can be articulated in two forms: the supremacy of international law and testing the validity of domestic laws by international judicial bodies for the compatibility of domestic laws with international laws. In this context, the WTO legal system has uniquely legitimized the hierarchy of international laws in both of these forms. This development reflects what Woodrow Wilson observed a few decades ago. He claimed, “You will see that international law is revolutionized by putting morals into it.”105 Conceptualizing internationalization and globalization, Peter Singer vividly attributes internationalization to the old mode of international relations under which the conception of a nation-state or the traditional idea of sovereignty is not only recognized, but also given a determining status. Beyond the traditional idea of sovereignty, Singer deliberates globalization as a form of standard, which requires the conceptual transformation of sovereignty into a new form, with the recognition of the supremacy of international rules for the governance of international relations.106 Our Global Neighborhood Report powerfully observes, “The rule of law has been a critical civilizing influence in every free society. It distinguishes a democratic from a tyrannical society; it secures liberty and justice against repression; it elevates equality above dominion; it empowers the weak against the unjust claims of the strong. Its restraints, no less than the moral precepts it asserts, are essential to the well-being of a society, both collectively and to individuals within it. Respect for the rule of law is thus a basic neighborhood value. And one that is certainly needed in the emerging global neighborhood.”107 The very idea of the supremacy of international rules over the domestic laws captures the core concept of global constitutionalism. However, some scholars have skeptically contested the supremacy of international law. They maintain that international laws and international organizations that administer them are essentially irrelevant to a proper understanding of international politics and consequently to the progressive development of international political theory.108 In 1971, Stanley Hoffman concluded that the 105  Cited in Arther Watts KCMG QC, The Importance of International Law, in The Rule of Law in International Politics: Essays in International Relations and International Law 12 (Michael Byers ed., Oxford University Press, 2009). 106  See generally Peter Singer, One World: The Ethics of Globalization (Yale University Press, 2002). 107  See Our Global Neighborhood: The Report of the Commission on Global Governance 303 (Oxford University Press, 1995). 108  See Francis Anthony Boyle, World Politics and International Law 3 (Duke University Press, 1995).

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irrelevance of international law and organizations would persist until the world returned to the conditions of relatively simple placidity that supposedly characterized its formative period.109 Boyle further claimed that international law and international organizations would not become relevant to international politics in the foreseeable or even distant future.110 Further, Boyle argued that the application of legal methods to address international political problems is thoroughly inadequate and also counterproductive.111 E. H. Carr and Hans J. Morgenthau also rejected the significance of international law in the realm of international relations. These realists have argued that, when put to the test in practice, international law does not have any impact on state behaviors.112 Armstrong, Farrell, and Lambert’s claim that the argument that international law has had no impact on contemporary world politics and that states can do as they please is hard to credit.113 Basac Cali considers observations that ignore the role of international law in international relations cynical expressions. He suggests that cynics regard international law as an enterprise of the naïve, the occupation of wishful thinkers, or the realm of fools who do not understand international politics. Hence, Cali strongly argues that the cynical view is absolutely incorrect.114 The hierarchical function of global constitutionalism is succinctly manifested in the WTO legal system. A few examples in this regard elucidate this proposition. China adopted a policy that administers export quotas, imposes export duties, designs minimum export price requirements, and demands export licensing systems to be in place, among other requirements, on rare earth elements, tungsten and molybdenum. The U.S., EU, and Japan considered that the domestic policy of China distorts global market by creating competitive advantages in favor of China’s domestic industries, to the detriment of foreign competitors. In non-technical terms, it poses a question of whether a country is free to decide how much of its natural resources should be exported. The U.S., EU, and Japan argued that the Chinese export ­restriction

109  Id., at 5. 110  Id., at 4. 111  Id., at 5–6. 112  See David Armstrong, Theo Farrell, & Helene Lambert, International Law and International Relations Kindle Loc. 110 (Cambridge University Press, 2012). 113  Id., Kindle Loc. 123. 114  See Basac Cali, International Law for International Relations 2 (Oxford University Press, 2010).

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policy ­violates WTO rules. The WTO Dispute Settlement Panel, issuing its report on March 26, 2014, reached three conclusions:115

• •

First, the Panel found China’s imposition of the export duties in question inconsistent with China’s WTO obligations. Second, the Panel found the overall effect of the foreign and domestic restrictions by China aiming to encourage domestic extraction and secure preferential use of those materials by Chinese manufacturers. Under the circumstances, the Panel found that the requirement of ‘even-handedness’ as established by the Appellate Body under Article XX(g) of the GATT had not been met, and hence the Panel did not justify the quotas imposed. Third, the Panel found the imposition of certain restrictions on the right of enterprises to export rare earth elements and molybdenum was not satisfactorily explained and thus the restrictions were not satisfactorily justified under Article XX of the GATT. Accordingly, the Panel concluded that the Chinese act breached its WTO obligations.

•

The Appellate Body deciding on August 7, 2014 mostly justified the Panel’s Report. It upheld that the Panel’s findings that China did not demonstrate the export qotas that China applied to various forms of rare earth elements were justifiable pursuant to Article XX(g) of the GATT 1994.116 The 1990 amendment to the Clean Air Act of U.S. recognized two different standards of gasoline refinement for domestic refiners and foreign refiners. The law offered a lower level of standards to the domestic refiners, while requiring higher level of standards to the foreign refiners. Venezuelan gasoline exports to the U.S. constitute an important segment of its economy, which were adversely affected by the U.S. law. Venezuela challenged the U.S. law and practices before the WTO DSB, calling them discriminatory and inconsistent with the WTO rules. In its first decision, the Appellate Body of the WTO declared that Section 211(k) of the U.S. Clean Air Act violated the WTO rules.117 The WTO required the U.S. to make the Clean Air Act compatible with the WTO rules.

115  Panel Report: China—Measures Related to the Exportation of Rare Earth, Tungsten and Molybdenum, WT/DS431/R; WT/DS432/R; WT/DS433/R (March 26, 2014). 116  Appellate Body: China—Measures Related to the Exportation of Rare Earth, Tungsten and Molybdenum, WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R (August 7, 2014). 117  Appellate Body: United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (April 18, 2006).

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The U.S., for the first time in its history, amended its laws as directed by an international agency.118 The Indian Patent Act did not provide a system of patent protection for pharmaceutical and agricultural chemical products. It also lacked a formal system for permitting the filing of patent applications for pharmaceutical and agricultural chemical products. It further failed to provide exclusive marketing rights for such products. The U.S. considered the Indian patent law inconsistent with the WTO rules and asked that the WTO Dispute Settlement Body rule on the issue, requiring India to make its patent regime compatible with the WTO. The Appellate Body recommended to the Dispute Settlement Body that India bring its domestic legal regime for patent protection of pharmaceutical and agricultural chemical products into conformity with India’s obligations under Article 70.8 and 70.9 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).119 India subsequently changed its domestic laws relating to patents in order to comply with the WTO decision.120 The EC prohibited importation of beef products containing artificial hormones from the U.S. on the grounds of public policy and safety under various EC directives. This case is also known as the Hormone Dispute or Mad Cow disease case. The EC prohibited importation of beef products from many countries outside Europe, including Australia, Canada, and the U.S. The major argument of the EC was that the meat products from those countries were potentially harmful to human health. The EC thus imposed import restrictions on the basis of precautionary principles. The U.S., Canada, Australia, and other countries argued that the EC’s suspicion was not based on scientific evidence. The major dispute pertained to the issue of whether the EC could impose trade restrictions on the basis of public policy and political understanding of precautionary principles. The Appellate Body found that the EC directives were inconsistent with the Sanitary and Phytosanitary Agreement (SPS) of the WTO and thus asked the Dispute Settlement Body to request the EC to make its directives compatible with the SPS Agreement.121 The EC did not comply with the WTO decision on time. The U.S. asked the WTO to authorize sanctions 118  The United States agreed to amend its regulation within 15 months, and on August 26, 1997, it had reported to the Dispute Settlement Body that a new regulation had been signed on August 19, 1997. 119  Appellate Body: India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (December 19, 1997). 120  India notified the WTO of its implementation of the ruling on April 28, 1999. 121  Appellate Body: European Communities—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (January 16, 1998).

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against the EC. On July 26, 1999, the WTO authorized sanctions against the EC in the amount of $116.8 million, equivalent to the loss suffered by the U.S. The examples given above elucidate how global constitutionalism has fashioned the supremacy of international laws. In other words, domestic laws, policies, and practices are required to be compatible with international laws. Similar to a constitution, international laws assume the position of supremacy. State Parties bear an obligation to ensure that their domestic laws and policies give effect to international rules. Almost in the same vein, a constitution unifies the domestic polity in one legal superstructure, whereby a developed institutional reading of international law unifies the international community in a single coherent constitutional structure.122 Trachtman observes that the international legal system indeed has a constitution, with enabling, constraining, and supplemental features. He further claims that there is also no doubt that the WTO constitution is a part of this broader constitution.123 These examples also verify the positivistic structure of international rules. For example, WTO trade negotiations carry out three activities: they formulate new rules, amend existing rules, and instruct WTO Members to change their domestic laws, policies, and administrative mechanisms. The conclusion of the trade negotiations agreed to by Members will come into force through the regular treaty-making process, which reflects the legislative process. In addition, laws are also made through an interpretative adjudicatory mechanism under the Dispute Settlement Body (DSB) of the WTO. The DSB adopts the decisions of the Appellate Body and Panels that practically establish a body of jurisprudence, which interprets rules and reviews the compatibility of domestic laws and policies. Along with these legislative and adjudicatory processes, the WTO also has a powerful enforcement system.124 These developments are not unique to the WTO alone; today, they are on the rise in the international legal regimes. Nevertheless, the WTO framework of constitutionalism is one of the most adept, incorporating both features of supremacy, as mentioned above. 122  See Paulus, supra note The International Legal System, at 69. 123  See Joel P. Trachtman, Constitutional Economics of the World Trade Organization, in supra note Ruling the World?, pp. 228, 206–232. 124  See Mervin Martin, WTO Dispute Settlement Understanding and Development (Nijhoff International Trade Law, 2013); see also Gregory Shaffer & Ricardo Meléndez-Ortiz eds., Dispute Settlement at the WTO: The Developing Country Experience (Cambridge University Press, 2010); Chad P. Bown, Self-Enforcing Trade: Developing Countries and WTO Dispute Settlement (Brookings Institute Press, 2009); Guo Hua Yang, WTO Dispute Settlement Understanding: A Detailed Interpretation (Kluwer Law International, 2005).

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(e) Convergence With the institutionalization of the system of harmony and supremacy in particular, international law is effectively generating templates in synergizing domestic laws and policies across countries. Consequently, in some measure, laws and legal systems of different countries are being synergized. As a result, similar legal concepts and rules are found in domestic laws across countries. Indeed, this phenomenon of global constitutionalism is transmogrifying legal systems. Today, there are only a few differences between common law and civil law systems.125 In fact, the same is true for other legal systems. In essence, more than at any other time in history, almost all legal systems have converged to a certain extent by commonly incorporating international rules into domestic laws.126 Despite these commonalities, the level of incorporation is not uniform. With respect to the terms of rules, procedures, and institutions in particular, important differences still exist among the various legal systems in the world. In terms of these discrepancies, legal systems in the world could be put into three categories of legal systems: rule of law, rule by law, and hybrid legal systems.127 Rule by law legal systems suffer from serious problems of disconnections and neglect of legitimacy, authority, and validity. For instance, North Korea presents a succinct example of a rule by law legal system, where political determinism is a sufficient condition for the existence of the legal system and laws. By contrast, rule of law legal systems meet all the requirements of legitimacy, authority, and validity. Under this system, the three fundamental features of law are harmoniously unified. Generally, liberal democratic countries belong to this category of legal system. As a further contrast, the hybrid legal system 125  See generally Ragnhildur Helgadottir, The Influence of American Theories on Judicial Review in Nordic Constitutional Law (Martinus Nijhoff Publishers, 2005); see also Gluck Susan Megey, Civil Law and Common Law Traditions: Judicial Review and Legislative Supremacy in West Germany and Canada, 32 International and Comparative Law Quarterly 689–707 (1983). 126  See generally John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (Stanford University Press, 3rd ed., 2007); see also B. Markesinis, Judicial Style and Judicial Reasoning in England and Germany, 59 The Cambridge Law Journal 294–309 (2000); B. Markesinis ed., The Gradual Convergence: Foreign Ideas, Foreign Influences and European Law on the Eve of the 21st Century (Clarendon Press, 2000); John Henry Merryman, On the Convergence (and Divergence) of the Civil Law and the Common Law, 17 Stanford Journal of International Law 357–388 (1981). 127  The author will systematically elaborate the three categories of the world legal systems: a rule by law, the rule of law, and hybrid legal system in his future work. Nevertheless, elsewhere in this book, these concepts of legal systems are briefly and contextually discussed.

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meets the standard of authority, but partly lacks the standards of legitimacy and validity. Thus, in its precise appreciation, only rule of law legal systems can uphold the unity of legitimacy, authority, and validity in institutionalizing the positivity of law at the domestic level. To put it clearly, laws are the masters in rule of law legal systems, whereas laws are mere political instruments in other legal systems. Yet, with the institutionalization of global constitutionalism, even a rule by law legal system cannot defy the hierarchy of international law; thus, it is bound to permit the process of harmony and synergy of domestic laws with international rules. In short, global constitutionalism synergizes domestic legal systems with the common features of the rule of law. As a science, law is aimed at the explication of the nature of a legal concept. For the same reason, this is also true in the arena of international law. International law is shaped at an unprecedented level in reaction to the globalization of legal concepts. As one of the most catalytic processes of today’s international relations, international law is profoundly transforming international relations from a simple diplomatic form to a rules-based structure. Owing to the acceptance and practice of the rules-based structure by countries, a synergic arrangement among domestic legal systems and laws is gradually emerging. The nature of this system of global convergence is fundamentally designed by the very concept of global constitutionalism. The process of convergence appears at two distinct levels. First, it emerges in the making of rules at the global level, in which concepts are transported from different countries and legal systems and negotiated before transmuting them into international rules. At this stage, power and lobby critically influence the international rules making. Often, poor, weak, and small countries feel excluded and not integrated in the process due to a number of external and internal factors, including their level of preparation in the process. Thus, this stage is profoundly critical. Second, the concluded rules demand that states regulate their relations and provide necessary institutions, including laws, for effective cooperation in the global system. The demands for harmonization of domestic laws and policies with international rules also promote convergence of laws and legal systems across countries. With the combination of these ­processes—from domestic to the global and from global to the ­domestic—global constitutionalism operates in synergizing laws and legal systems. Two examples from human rights and international trade may suffice in explicating this proposition. Despite reservations on cultural and political grounds,128 when countries promulgate Human Rights Acts or laws with human rights components, they 128  For example, among others Bahrain, & Kuwait have made reservations to allow the right to family enshrined under Article 23 of the ICCPR subject to Islamic Sharia and domestic

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generally incorporate the concepts and contents provided by the international human rights instruments. For example, there seem to be comparable similarities between the Human Rights Acts of Australia, Canada, India, Nepal, and the United Kingdom, among others. Similarly, Members of the WTO, as per the requirement of the Agreement on Trade Related Aspects of the Intellectual Property Rights (TRIPS), provide 20 years as the minimum period of patent protection. These developments suggest the streamlining of the process of synergy. Nonetheless, these undertakings should be read with a certain level of caution, as there are numerous issues straitjacketing the process. With the five modi operandi in place, global constitutionalism carves out its conceptual distinction in the realm of international laws and relations. However, it is too early to conceive of global governance as a substitute for the sovereign states. In fact, with the advent of global constitutionalism, sovereignty of states has not only been constrained, but has also been strengthened and the real sovereigns, the people, have been empowered with greater rights.129 As suggested by Whitman130 and Ritzer,131 the empowerment of people can be observed at different levels. First, local communities in support of civil society organizations and other community groups can manage a number of local issues without the direct involvement of government, which can be called governance without government. Second, many actors—such as multinational corporations, business entities, the private sector, civil society organizations, academia, journalists, and other stakeholders—engage in public policy issues without the direct control and involvement of government, which can be stated as governance through various public policy networks. Third, globalization is institutionalized through international rules and institutions, which is laws. The United Kingdom has reserved to the first sentence of Article 3(4) of the ICCPR subject to the law of domicile. The U.S. has made reservation to Article 7, which prohibits cruel and inhuman punishments only in consonance with the Fifth, Eighth, and Fourteenth amendments of the U.S. Constitution. 129  See Allot, supra note Eunomia, pp. xxi–xxii. Allot argues that, “The revolutionary transformation of national societies meant that the people took power over public power, not merely through the development of ‘public opinion’ as an additional organ of the constitution, and not only through new institutions, but also through the rise of a form of popular psychic power, a change of consciousness which meant that the people were no longer to be regarded as the subjects of the state, and that public power would be regarded as a delegation from the people. In particular, the rule of law came to be seen as the people’s main means of controlling the granting and the exercise of public power.” 130  See Jim Whitman, Global Dynamics and the Limits of Global Governance, 17 Global Society 253–272 (2003). 131  See Ritzer, supra note Globalization, Kindle Loc. 3464.

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reflexive of governance at the global level. However, contrasting the claim of Ritzer that these three forms of governance have caused the decline of the nation-state, with the development of global constitutionalism, the sovereignty, territorial integrity, and political independence of countries have been further strengthened, while domination and unruly behaviors of powerful countries have been largely contained, and the uniform standards of international cooperation have been institutionalized. Therefore, global constitutionalism by institutionalizing legitimacy, authority, and validity of international laws and legal systems has strengthened the power of people who are the real sovereigns. 1.4

Challenges to Global Constitutionalism

Obviously, there are many challenges to the effective institutionalization of global constitutionalism. As shown in Chart 7, this chapter classifies these challenges into three broad categories: the Western bias and hegemony in making rules, a con- Chart 7 Challenges to global constitutionalism. stant defiance of international law (especially by the powerful countries), and terrorism. Terrorism negates the entire idea of a rules-based system. The second challenge is closely connected with the defiance of the modus operandi of global constitutionalism, whereas the first challenge is associated with the denial or bending of the formative features for the vested interests of powerful countries. For its clear understanding, the first challenge can also be broken down into three sub-sets: conceptual domination, institutional bias, and methodological resentment. 1.4.1 Western Bias and Hegemony The challenges to global constitutionalism begin from the early stages of negotiations for making international laws to the conclusion of the content of rules. In many cases, the contents of international rules have historically been based on Western ideas and concepts of law. Further, by creating hospitable institutions, they protect their interests, such as the veto system in the

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Security Council and Article XI.2(c) of the GATT, among many others. Often, countries from both North and South engage in the making of international law being driven by the motive of protecting national interest, instead of creating global welfare. Because of the veto system legitimized under the UN Charter, the five privileged countries are entirely immune from the danger of invoking Chapter VII process against them. Moreover, a consensus among these five privileged members is a required precondition to apply the Chapter VII process against other countries as well. On the issue of the Korean War, Article 51 was invoked for the first time only because the former USSR abstained from the Security Council (SC) meeting.132 Since then, the application of the collective defense system under Article 51 has always been defeated by the use of frequent vetoes and became possible only in 1990, with the SC Resolution 660 of August 2, 1990, demanding Iraq’s unconditional withdrawal of its military force from Kuwait. It is not only the Syrian crisis that stands unmet by the global community due to the use of the veto, as the Russian annexation of Crimea in March 2014 was also placed out of the scope of Chapter VII. The General Assembly Resolution 68/262 of March 27, 2014, has underscored the invalidity of the March 16, 2014 referendum in Crimea and affirmed the sovereignty, political independence, and territorial integrity of Ukraine within its internationally recognized borders. However, the Security Council has miserably failed even to affirm these norms of jus cogens and condemn the Russian annexation of Crimea against the backdrop of Russian vetoes. With the excessive politicization of the veto system, powerful countries at both the global and regional levels are resorting to unilateral actions in violation of Chapter VII of the UN Charter. The NATO action in Kosovo,133 the

132  See the Security Council Resolutions SC/RES/82, June 25, 1950; SC/RES/83, June 27, 1950; SC/RES/84, July 7, 1950; SC/RES/85, July 31, 1950. These resolutions were taken on the backdrop of the boycott of the Security Council by Soviet Union in protest of the Council’s failure to replace the Republic of China’s seat with the recently established People’s Republic of China. 133  For detail analysis about the legality of the NATO action in Kosovo, see Louis Henkin, Kosovo and the Law of Humanitarian Intervention, 93 American Journal of International Law 824–828 (1999); see also Ruth Wedgwood, NATO’s Campaign in Yugoslavia, 93 American Journal of International Law 828–834 (1999); Jonathan I. Charney, Anticipatory Humanitarian Intervention in Kosovo, 93 American Journal of International Law 834–841 (1999); Richard A. Falk, World Order, and the Future of International Law, 93 American Journal of International Law 847–857 (1999).

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Second Iraq War,134 and the U.S. presence in Afghanistan135 are only a few examples of unilateral actions that have defied the Chapter VII process despite sufficient grounds for justification. Similarly, there are more than 200 cases of unilateral sanctions imposed by powerful countries, especially by the permanent Members of the UN Security Council in the post-war era. The U.S. alone has taken more than 50 percent of all unilateral sanctions. The United Kingdom, USSR/Russia, and the EU are other frequent users of unilateral sanctions, followed by China and France.136 These examples clearly indicate that the system of veto under the UN has not only been counterproductive for the effective implementation of international law, but is also posing serious challenges to the foundation of global constitutionalism. The GATT Article XI.1 prohibits quantitative restrictions (QRs). The reason is simple—the system of production and consumption is regulated by market mechanism. While the consumer determines the market demand, the producers and suppliers are in charge of meeting it. In this market mechanism, government intervention is unwanted and unnecessary; nonetheless, Article XI.2(c) legitimizes government intervention in the market by allowing governmental measures to restrict the importation of farm products. In short, Article XI.2(c) serves three fundamental purposes. First, it allows government to decide how much should be produced and supplied. Second, it primarily legitimizes the American and European concepts and their domestic practices. Third, poor countries, despite the need to empower their farmers, cannot decide how much their farmers should produce, as the decision demands subsidy, which they cannot afford. Thus, this provision was primarily designed to solely serve the interests of a few rich countries.137 The examples from the veto system under the UN and the GATT Article XI.2(c) give a glimpse of how, from negotiations to the determination of the contents of international rules, the West maintains its hegemony. The very hegemonic 134  For detail analysis about the legality of the second Iraq war, see Ronan O’Callaghan, Wazer, Just War and Iraq: Ethics as Response (Interventions) (Routledge, 2015); see also Usha Natarajan, A Third World Approach to Debating the Legality of the Iraq War, 9 International Community Law Review 405–426 (2007); Richard J. Graving, Iraq War: Legal? Legitimate?, 48 South Texas Law Review 275 (2006). 135  For detail analysis about the legality of the U.S. presence in Afghanistan, see Myra Williamson, Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001 (Ashgate, 2009). 136  See Tary Clyde Hufbauer, Jeffrey J. Schott, Kimberly Ann Elliot, & Barbara Oegg, Economic Sanctions Reconsidered (Peterson Institution for International Economics, 3rd ed., 2007). 137  See Surendra Bhandari, Making Rules in the WTO: Free or Managed Trade? 60 (RoseDog Books, 2012).

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concept reflected in the rules of international law in the actual sense is posing serious challenges to global constitutionalism. 1.4.2 Defiance of International Law Poor countries, unless they are authoritarian, can hardly venture to defy international law. Even if these countries choose to violate international law, remedies are in place, which can be applied to correct their violations and enforce international law against them. When the big five defy international law, in many cases it is almost impossible to enforce a liability against them. In some cases, the big five also extend their protections to their allies. For example, the U.S. Supreme Court decision in Medllin v. Texas138 unconventionally found that, “While a treaty may constitute an international commitment, it is not binding to domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be ‘self-­executing’ and is ratified on that basis.” Moreover, in the Kadi II139 decision in 2013, the Grand Chamber of the European Court of Justice (ECJ) upheld the earlier decision of 2010 by the ECJ General Court establishing that a decision of the Security Council of the United Nations cannot be exempted from a judicial review. China is not a Party to the International Covenant on Civil and Political Rights (ICCPR). On the other hand, the U.S. is not a Party to the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The big, powerful, and most populated countries such as China, India, Indonesia, Russia, and the U.S. are not Parties to the Rome Statute of the International Criminal Court (ICC Statute). Certainly, no country can be compelled to join or to be a Party to international treaties. Still, the point is that countries calculatingly choose not to be a Party if their political interests are not served or they would like to pursue political interests differently than the treaties require. As a result, 138  See 551 U.S. 491 (2008). The case was argued on October 10, 2007, & Decided on March 25, 2008, by the Supreme Court of the United States of America. 139  See the Judgment of July 18, 2013, Joined Cases C-584/10 P, C-593/10 P & C-595/10 P. In paragraph 97 of its decision, the Court observes that, “As stated by the General Court in paragraphs 125, 126 and 171 of the judgment under appeal, the Court held, in paragraph 326 of the Kadi judgment, that the Courts of the European Union must, in accordance with the powers conferred on them by the Treaties, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order, including review of such measures as are designed to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations (see also, to that effect, Hassan and Ayadi v Council and Commission, paragraph 71, and Bank Melli Iran v Council, paragraph 105). That obligation is expressly laid down by the second paragraph of Article 275 TFEU.”

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c­ ountries can practically sideline or undermine the features and functions of global constitutionalism either by not joining international treaties or by insisting on reservations. In addition to pursuing these routes, in many cases, powerful countries blatantly violate international laws, especially when actions cannot be taken against them or there is only a low risk arising from the violation. For example, during the Cold War and even in the post-Cold War period, there have been many instances of disrespect for and violation of international rules. The 1980s saw a troublesome period in UN history. In 1979, American diplomats were taken hostage in Iran when the revolutionary government came into power. The Iranian government ignored the decisions of the UN Security Council (SC). Fights between China and Vietnam did not end. The French and U.S. involvements in the Vietnam War had challenged the rules-based system of international relations. In the meantime, the USSR invaded Afghanistan in December 1979. The Iran-Iraq war also began in September 1980. The SC could not invoke collective defense measures and remained a passive spectator. Moreover, the decade also witnessed conflicts in Northern Ireland, guerrilla warfare in Malaysia, and civil wars in Chad, Nicaragua, Salvador, Sri-Lanka, and Sudan. Most notably, the American-Vietnam War and the U.S. military involvement across the globe defied the UN Charter and the rules of international law. Among others, the Israeli attack on Lebanon in 1968,140 the Israeli attack on Tunisia in 1985,141 U.S. action against Libya in 1986,142 the U.S. ­invasion 140  The Israeli air force attacked Beirut airport in December 1968. Israel attempted to justify this action as a response to the earlier terrorist attack on an Israeli plane at Athens airport. Israel claimed that Lebanese government had permitted Arab terrorist organizations to set up their headquarters in Beirut and to maintain a training base in Lebanon. The attack on an Israeli plane at Athens airport had violated the ceasefire between Israel and Lebanon, and Israel was entitled to the rights of self-defense. However, the Security Council had unanimously denounced the Israeli attack with its Resolution 262 of 1968. The U.S. also joined the condemnation. The U.S. said that Lebanon had not in fact been responsible for the terrorist attack on Athens airport and the Israeli action was not proportionate. However, the U.S. maintained that the Israeli action was based on the inherent right of self-defense. Other States in the SC did not agree with the unpalatable interpretation of the U.S. 141  Israel attacked Tunisia in 1985 in response to terrorist attacks on Israelis abroad by the PLO. Israel claimed that Tunisia had a duty to prevent such attacks but did not fulfill it. The SC condemned the Israeli attack by 14-0-1 votes and found the Israeli conception of self-defense very far from that of international law. However, the U.S. supported the Israeli claim. 142  The U.S. attacked Tripoli in 1986 in response to Libya’s involvement in terrorist attack against U.S. citizens abroad. The U.S. reported the action to the SC as self-defense under Article 51 of the UN Charter. The U.S. claimed that it had taken action against Libya in

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of Panama in 1989, the U.S. action in Iraq in 1993,143 the U.S. action against Al-Qaida in 1998,144 NATO action in Kosovo in 1999,145 U.S. action in Afghanistan in 2001,146 the U.S. action in Iraq in 2003,147 and the Russian involvement in the response to the past terrorist attacks on its nationals and also to deter Libya in the future. Most of the Members in the SC rejected the U.S. claim saying that self-defense should be narrowly interpreted and could not be used pre-emptively. However, the SC could not take a decision to condemn the U.S. actions since the UK and France supported the U.S. Moreover, the UK claimed that the right to self-defense was not a passive right. 143  The U.S. blamed Iraqi intelligence for the alleged assassination attempt on ex-President George H. W. Bush in Kuwait in April 1993. The U.S. responded in June 1993 by firing missiles at the Iraqi Intelligence Headquarters in Baghdad. The U.S. reported the action to the SC as an act of self-defense under Article 51 of the UN Charter. The SC showed considerable sympathy with the U.S., with only China condemning the U.S. Some commentators argue that this led to a turning point in the arena of international law on terror, allowing a flexible approach to the invocation of the right to self-defense. 144  The U.S. responded to the terrorist attack by Al Qaida on its embassies in Kenya and Tanzania in August 1998 by launching missile attacks on a terrorist training camp in Afghanistan and a pharmaceutical plant in Sudan. The U.S. reported its action to the SC under Article 51 of the UN Charter. The U.S. claimed that the actions were attempts to bring Afghanistan and Sudan to comply with international law. Sudan requested a meeting in the SC, but it did not take place. Arab States, NAMA, Pakistan, and Russia condemned the U.S. 145  The SC had found that the deteriorating situation in Kosovo was threatening international peace. It had also noted that the situation was leading towards a humanitarian catastrophe. On October 13, 1998, NATO had issued activation orders for air strikes against the Federal Republic of Yugoslavia (FRY) to commence four days later, unless the FRY complied with the requirements of the SC Resolution 1199. With Slobodan Milosevic agreed to withdraw troops, the UN welcomed the agreement. But the situation did not improve. NATO began air strikes on March 24, 1999, that continued until June 10, 1999. India and Russia proposed the SC to take a resolution condemning the NATO invasion, but could not succeed. Instead, the UNMIK was established by the SC Res. 1244. 146  In the post-9/11 situation, the U.S. started “Operation Enduring Freedom (OEF)” in Afghanistan from October 7, 2001, with the military assistance from the UK, France, Germany, Australia, Canada, and other countries. President Bush announced that the U.S. would make no difference between a terrorist and those who harbor them. The U.S. informed the SC under Article 51 stating that Al-Qaida was operating from Afghanistan with the support of Taliban regime. The U.S. claimed that the action was based on selfdefense, yet the SC did not specifically give permission like in the Iraq War 1990 with the SC Resolution 678, though no states in the SC condemned the U.S. action. 147  U N Secretary-General Kofi Annan said that, “. . . from our point of view and the UN Charter point of view, it was illegal.” The U.S. Permanent Representative to the UN, Ambassador John Danforth responded that, “We don’t agree with the Secretary-General . . . Consider there were 16 Security Council Resolutions and Resolution 1441 held that the then

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b­ reakaway of Crimea from Ukraine in 2014 are some of the pertinent examples of the UN Charter violation. In the aftermath of 9/11, the question is, “Has there been a significant change in international law, especially with regard to the extension of Article 51, to nonstate actors with or without complicity of a state?” Particularly, with Security Council Resolution (SCR) 1373 of 2001, two schools of thought have emerged. The first, still fixated on the concept of realism, argues that, even in the absence of permission from the SC, actions can be taken against terrorists and actions for humanitarian interventions can be carried out in critical humanitarian situations as a responsibility to protect (R2P). The second school considers that the legal requirements under Article 51 of the UN Charter are not conditional to the events of terrorism or humanitarian situations; preconditions of the UN Charter should be fulfilled in resorting to the use of force even in the case of self-defense.148 In the Israel-Palestine Wall case,149 the ICJ took the opportunity to interpret Article 51 of the UN Charter and the SC Resolutions 1368 & 1373 in its Advisory opinion. The ICJ observed that Article 51 of the UN Charter allows self-defense only in the case of an armed attack by one state against another state and further held that these Resolutions did not support the Israeli claim of constructing a wall in the name of self-defense.150 Although some interest lobbies often advocate exercising it beyond Article 51, the demand for the application of the so-called doctrine R2P beyond the scope of Article 51 has now clearly lost its legitimacy. The Libyan case of 2011 and the Mali case of 2012/13 clearly establish that both humanitarian interventions and fighting against terrorism should be carried out within the legitimate processes following the requirements of the UN Charter, especially the process of self-defense under Article 51 of the UN Charter. In the face of colossal violations of human rights in Libya, the SC g­ overnment of Iraq was not in compliance with the previous resolutions, which is clearly the case, and promised that there would be serious consequences if they were not in compliance. Then the question . . . for those countries that were part of the coalition was . . . do all these UN resolutions mean nothing, does the Security Council mean nothing, is it totally ineffectual . . . It would undercut the rule of law had there been no action . . . So I think that action we took . . . was required if we’re going to maintain a rule of law.” Cited in ASIL, Legality of U.S.-led Invasion of Iraq, 99 American Journal of International Law 269–270 (2005). 148  See Ian Brownlie & C. J. Apperley, Kosovo Crisis Inquiry: Memorandum on the International Law Aspects, 49 International and Comparative Law Quarterly 878–905 (2000). 149  Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Reports 134, Advisory Opinion. 150  Id.

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made a ‘No Fly Zone’ decision, which clearly authorized the Member States acting nationally or through regional organizations or arrangements, to take ‘all necessary measures’ to enforce compliance with the decision.151 To defeat terrorist activities, the SC authorized152 the use of force in coordination with the Transitional Authority in Mali. At the request of the Transitional Authority in Mali, on January 11, 2013, the French force, in support of other Member countries of the UN, carried out military operation called ‘Operation Serval’ against terrorists in the north of Mali. However, the same immunity is not feasible within the international trade and business law domain even for the big five. More specifically, to keep defying international law without any liability has become almost impossible under the WTO. One of the strengths of the WTO is that it does not have a veto system. Rather, it has institutionalized the negative consensus system to make it impossible to block the implementation of the decisions of the DSB. Moreover, the system of retaliation and compensation imposes liabilities effectively. These lessons from the WTO are vital not only in promoting the cause of global constitutionalism, but also provide important strategies for reducing the flagrant violations of international law. However, the WTO system is not without flaws either. The Doha Round Negotiations have clearly revealed how the protectionist and domestic interests thwart global welfare. The methodological problem faced by the WTO is an opportunity to learn and remove the weaknesses in order to strengthen global constitutionalism. 1.4.3 Terrorism Terrorism has proved that not only the state actors, but also non-state actors, such as Al Qaida, ISIS, and other terrorist groups, can violate international law, cause disorder, and pose serious threats to global constitutionalism. Especially in the aftermath of 9/11, the threats of terrorism have escalated in many forms and folds. Yet, international law has still not come out of the piecemeal approach to dealing with terrorism. The Suppression of Terrorist Bombings Convention153 and Suppression of the Financing of Terrorism Convention154 have played 151  See the Security Council Resolution SC/RES/1973, March 17, 2011. 152  Id., SC/RES/2085, Dec. 20, 2012; SC/RES/2083, Dec. 17, 2012. 153  International Convention for the Suppression of Terrorist Bombings, 1997, was adopted by resolution A/RES/52/164 of the General Assembly on December 15, 1997. As of January 25, 2015, it has 168 Parties. 154  International Convention for the Suppression of Financing of Terrorism, 1999, was adopted by Resolution 54/109 of December 9, 1999, at the fourth session of the General Assembly of the United Nations. As of January 25, 2015, it has 186 parties.

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important roles, but they are still limited to a piecemeal approach. A holistic international law on terrorism is still lacking, as is a universally accepted definition of terrorism.155 In addition, issue such as whether or not states should go through the process of Chapter VII of the UN Charter in dealing with crossborder acts of terrorism have been mired in controversy. However, lately with ‘Operation Serval’ in Mali carried out under Article 51, it has become clear that the process of Chapter VII is undeniable. Since the Security Council Resolutions 1269 of 1999, and 1373 of 2001, the United Nations has adopted a number of resolutions and measures to fight against terrorism. Despite that fact, the need for a comprehensive international treaty to deal with terrorism has not yet relented; in fact, it has become even more urgent. As a comprehensive treaty seems a distant reality, either the Security Council or the General Assembly needs to make concrete efforts toward requiring countries to adopt a universal jurisdiction to deal with terrorism in all its forms, irrespective of whether it is domestic or international in nature. Such measures would help toward having an effective mechan­ ism in place to address the problem of terrorism and promoting global constitutionalism. 1.5 Conclusion In quintessence, global constitutionalism can be appreciated as a method, an order, and a scheme of international law and relations. As a method, it legitimizes international laws and international legal systems. As an order, it warrants power at the international level to be expressed and exercised in the form of authority and rights guaranteed under international laws. As a scheme, it institutionalizes a system of supremacy and validity in harmonizing domestic laws with international laws and creating synergy among cross-country domestic laws and legal systems. The spectacular rise of international institutional order comprehended in the post-war era appears to be confidently espousing the system of global constitutionalism. Global constitutionalism is progressively becoming embedded in the constitutionalization of international relations. The development of constitutionalism under international law has brought globalization within the legalistic premise. Thus, despite being understood and explained as diverse academic artifacts, ‘global constitutionalism’ has truly become a legitimate force with the features of positivity in shaping the pace and pattern of global 155  See supra note Williamson, Terrorism, War and International Law 335–336.

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governance and globalization. Against this background, the instrumentalist, inter-disciplinarist, and contested constitutionalist approaches have failed to offer a comprehensive concept and modus operandi of global constitutionalism. Owing to the idea of a rules-based international system,156 the nature of international relations has been institutionalized beyond the preoccupied limits of normativity. Some observers are of view that nation-states have remained preeminent until the current era of globalization, a time when global flows began to undermine the nation-state.157 Ohmae contends that, in terms of the global economy, nation-states have become little more than bit actors.158 Khan radically observes that due to the increased interdependence among the peoples of the world, the idea of the nation-state has become dysfunctional in serving the needs of global life.159 Perhaps some may see these observations as slight overstatements. Nevertheless, recent developments have signified the governing role of international law in managing international relations and defining the nature of global governance within the framework of global constitutionalism. For example, jus cogens have been taken in championing the cause of global constitutionalism. Not only courts, but also quasi-judicial bodies, such as the Human Rights Committee, have declined to acknowledge the validity of reservations that are contrary to the peremptory rule of international law.160 156  See Brownlie, supra note The Rule of Law, pp. 13–17. 157  See Ritzer, supra note Globalization, Kindle Loc. 3172. 158  See Kenichi Ohmae, The End of the Nation-State: The Rise of Regional Economies Kindle Loc. 3197 (Free Press, 1995). 159  See generally Ali L. Khan, The Extinction of Nation-States: A World Without orders (Kluwer Law International, 2011). 160  For example, the Human Rights Committee on its General Comment 24 (52) CCPR/C/21/ Rev.1/Add.6 (1994), relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto under article 41 of the ICCPR has declined to recognize the reservations if they are against the rules of jus cogens. In para. 8 the HRC observes that, “Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant . . . Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations . . . And while reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be.” See also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Reports 15. The ICJ established that, “A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention: otherwise, that State cannot be regarded as being a Party to the Convention.”

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In this era of global constitutionalism, the synergy between international relations (IR) and international law (IL) has already become more welcoming and symbiotic than ever before.161 Explicating global constitutionalism as the governing apparatus of international law, it is beyond doubt that it has an instrumental role in managing international relations in a positivistic fashion. In essence, the major findings and conclusions of this chapter can be stated as follows:

•

First, global governance is not a substitute for sovereign states. In fact, with the advent of global constitutionalism, the sovereignty of states is not only constrained, but has also been strengthened and the real sovereign people have been empowered to a greater extent. Second, the rules of international law are being transformed into domestic legal systems through a domestic legal process that enhances the harmonization between domestic and international laws. With this process, necessary laws have been enacted at the domestic level to give effect to international laws or international laws contemplated as a part of the domestic legal system. Third, international judicial decisions inspire necessary changes and reform in domestic legal systems through reviewing the compatibility of domestic laws and policies with international laws. Fourth, through international negotiations, international laws also embody legal concepts and practices grown in different legal systems, implying a global nature for international rules. This is also reflective of the global legislative process, although, due to the widespread continuation of biases and asymmetries in negotiations, especially in transmuting concepts into rules, in some cases, the legitimacy of rules has been called into question.

•

• •

161  See Anne-Marie Slaughter, Andrew S. Tulumello, & Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 American Journal of International Law 367–397 (1998). They observe that, “IR and IL have rediscovered one another. A new generation of interdisciplinary scholarship has emerged, acknowledging that the disciplines represent different faces of and perspective on the same empirical and/or inter-subjective phenomena. Outsiders might categorize them as dividing the study of the international system in terms of positive versus normative, politics versus law. Insiders in both disciplines reject such facile distinctions. The reasons for the periodic divergence and reconvergence of the two fields have had more to do with the internalization of external events such as the Cold War and its end and the externalization of the internal dynamics of theory building and purported paradigm shifting.”

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•

Fifth, the growing compliance and implementation of bilateral, regional, and multilateral agreements evidence global constitutionalism as the touchstone of global governance. Sixth, akin to a constitution, international laws are progressively assuming the position of supremacy over domestic laws. State Parties are not free to eschew their obligations in giving effect to international laws on the grounds of incompatibility of international laws with domestic laws. These minimum obligations of the harmonization of international laws have shaped the process of constitutionalizing international law, which has already garnered the requisite legitimacy, authority, and validity.

•

In sum, global constitutionalism has emerged not simply as a normative standard, but instead, in the form of positive rules institutionalized into an ­international legal system(s). The formative features and modus operandi warrant that, despite not having a specific document, such as a constitution, international laws and legal systems have already been legitimized in shaping ­international relations with the institutionalization of global constitutionalism. The metamorphosis of global constitutionalism in the sphere of international laws and international legal systems has constituted the positive concept of the rule of law beyond borders and territorial nexus in empowering countries and their people in setting the future path of international law.

Chapter 2

International Trade Law: Theories and Practices in Negotiations* Summary It is typically true that international trade negotiations result in making international trade rules. What is not evidently understood, however, is whether international trade negotiations are designed to apply international trade theories in making rules or not. This prompts the question, what role do international trade theories play in international trade negotiations and rule making? This chapter delves into this fundamental question and analyzes the reasons that motivate negotiators to sidestep international trade theories in international trade negotiations and rule making. As will be shown, one of the fundamental reasons is that most of the existing trade theories do not provide sufficient methodological grounds to shape the rule-making process in the WTO. Second, some of these theories are built to protect local interests through international regimes and are thus unhelpful in shaping international rule making. In most cases, trade negotiators obsessively try to apply trade theories, which have no prospects in defining the content of international trade rules. Third, as an alternative inquiry, this chapter analyzes and suggests welfare-grundnorm as a theory and methodology for designing international trade negotiations and making international trade rules. 2.1

Why Trade?

This chapter discusses the rationale of international trade, focusing mainly on the grounds of its vindication. Trade, both at the domestic and international levels, is justified mostly with similar reasoning. The need for the existence and efficiency of a government, a profit motive of the producers, and the needs and choices of consumers are the major factors that provide rationales for both domestic and international trade. Nonetheless, some detailed undercurrents * This chapter is a revised version of an earlier paper published in 26 Ritsumeikan Journal of International Studies 15–50 (2013), titled Revisiting the Application of the Theories of International Trade and Exploring the Scope for Welfare-Grundnorm in International Trade Negotiations.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004313460_003

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make international trade more complex than trade at the domestic level. The complexity is especially driven by the nature of trade, which is protectionist, managed, liberal, free, and fair.1 In addition to these three rationales of trade, the regime of international trade invites a further one, i.e. trade as a means and basis of international cooperation. International trade is not a recent phenomenon. Since early history, humans have been engaged in trading activities, which Rivoli concisely calls “. . . the story of humankind; all in all, a happy story indeed.”2 Trade, in the words of Adam Smith, is a human propensity and a happy tendency nurtured by human nature.3 However, the nature of ancient, medieval, and modern trade is vastly different in terms of the diversity of products, risk management, modes of trade, actors, institutions, and rules. While this chapter cannot address all these important issues in detail, it will provide a brief overview on the development of the international trading regime through its history to the modern day, especially focusing on the post-war trading regime that has greatly contributed in institutionalizing global constitutionalism. Broadly, the explanation of the rationale of international trade can be divided into four paradigms: wealth and righteousness, wealth and advantages, increasing returns, and the expansion of stakeholders’ welfare or welfare-grundnorm. Welfare is one of the commonly found core elements in each of these explanations. Despite a significant amount of justification in placing welfare at the core, these paradigms explain the rationale of international trade in substantially different ways. From the age of Kautilya4 and Plutarch5 to recent days, one of the ration­ ales of trade has been built on the idea of the righteousness of international cooperation and the tools of wealth accumulation. Kautilya appreciated the role of international trade in promoting international cooperation, focusing on the worth of trade policy and rules in the promotion of international trade. 1  See generally Surendra Bhandari, Making Rules in the WTO: Free or Managed Trade? (RoseDog Books, 2012). 2  See Pietra Rivoli, The Travels of a T-Shirt in the Global Economy, cited in William J. Bernstein, A Splendid Exchange: How Trade Shaped the World, Kindle Loc. 31 (Grove Press, 2009). 3  Id., cited in Bernstein, A Splendid Exchange, Kindle Loc. 222. 4  Kautilya (370–283 BC) is also known by other names such as Chanakya, and Vishnu Gupta. He was a Professor of Economics and Political Science at the ancient university of Takshashila in India. Today, Takshashila University does not exist and the land belongs to Pakistan. He authored one of the earliest books ever written on economics called Arthashstra, which was considered as the main guiding instructions to Maurya Emperor Chandragupta. See Kautilya’s Arthashastra (R. Shamasastry trans., Spastic Cat Press, 2009). 5  Plutarch (46–120 AD) was a Greek historian, who contributed dozens of literary books and also wrote about trade.

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A more systematic explanation and justification of international trade, associated with the idea of acquiring wealth set off by the notion of certain advantages, was offered by Adam Smith, David Ricardo, and Heckscher-Ohlin. The New Trade Theory, built on the idea of increasing returns and monopolistic competition, offers a more sophisticated explanation of international trade. Complementary elements of welfare exist in all these explanations, but their shortcomings in the vindication of the perspectives of stakeholders give rise to the emergence of a fourth paradigm called welfare-grundnorm. This paradigm focuses on the dynamics of stakeholders’ relationships and the expansion of their collective and individual welfare as the rationale of trade, both at domestic and international levels. It also argues that the welfare-grundnorm approach is the one that effectively translates the idea of global constitutionalism into the domain of trade rules. All four paradigms are discussed briefly, in order to gain a basic level of familiarity with the rationale of international trade. 2.1.1 First Explanation: Peace, Wealth, and Righteousness Historically, trade has been understood as one of the most important reasons for peace, wealth creation, and as the right way of conducting international cooperation. Edmund Burke compared free trade with justice, which is a fundamental condition for peace.6 Mendis succinctly observes, “Of all available alternatives, the Founding Fathers chose trade as their primary means to advance ideas and ideals. Religion, race, ethnicity, language, and color might unite some individuals and groups, but the classifications might equally prove to be destructive force capable of permanently dividing nations. Trade, however, is not bound by these divisions.”7 Cheaper prices, greater consumer choices, international cooperation, friendship, and cultural understanding are the most alluring benefits of international trade that help build a sustainable peace. In 1919, Victor Fung concisely provided an account of a meeting among businessmen from different countries in Atlantic City to establish the International Chamber of Commerce (ICC), identifying themselves as ‘merchants of peace’ and adopting the motto of ‘world peace through world trade.’ From its inception, the ICC firmly believed in an open global economy as a force for economic growth, job creation, and prosperity. These three elements, reasonably distributed, are the fundamental ingredients for peace.8 6  Cited in Patrick Mandis, Trade for Peace, Kindle Loc. 820 (New York, iUniverse, Inc., 2009). 7  Id. 8  See Victor Fung, Preface: The ICC Vision, in Peace and Prosperity through World Trade, Kindle Loc. 335 (Fabrice Lehmann & Jean-Pierre Lehmann eds., Cambridge University Press, 2011); see also Peter D. Sutherland, Foreword, in Peace and Prosperity through World Trade, Kindle Loc. 307 (Fabrice Lehmann & Jean-Pierre Lehmann eds., Cambridge University Press, 2011).

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Plutarch argued that international trade was one of the important components of international cooperation, which would contribute in creating wealth and developing human civilization. Plutarch, appreciating the opportunity made available by the sea for trade and cooperation among people, observed that, without this, mankind would be savage and destitute. Douglas A. Irwin, in his book Against the Tide, splendidly analyzes the ancient ideas about trade. Irwin quotes an interesting passage from Plutarch, “ . . . when our life was savage and unsociable, linked it together and made it complete, redressing defects by mutual assistance and exchange and so bringing about cooperation and friendship . . . the sea brought the Greeks the vine from India, from Greece transmitted the use of grain across the sea, from Phoenecia imported letters as a memorial against forgetfulness, thus preventing the greater part of mankind from being wine-less, grain-less, and unlettered. Without the exchange made possible by the sea . . . man would be savage and destitute.”9 Kautilya, a professor at one of the world’s oldest universities, Takshashila University, located on the Indian sub-continent, provides a classical justification of international trade in his book, Arthashastra (Economics). Kautilya explained trade as one of the most important components of the four sciences,10 which he thought to be the sources of righteousness and wealth. Kautilya placed emphasis on the professional integrity of traders. He valued the autonomy of trade and argued that continuing trade using state funds, or with the financial support of the state, should be prohibited. He further suggested that fines be instituted, equivalent to twice the profit earned from such activities. This reminds us that, in those early days, subsidies were treated as the harmful tools of trade. Kautilya favorably promoted ideas about international trade, not only exports but also imports: “The superintendent shall show favor to those who import foreign merchandise: mariners and merchants who import foreign merchandise shall be favored with remission of the trade taxes, so that they may derive some profit . . . foreigners importing merchandise shall be exempted from being sued for debts unless they are local associations and partners.”11 Kautilya promoted the liberal ideas about export of domestic 9   See Douglas A. Irwin, Against the Tide: An Intellectual History of Free Trade 11 (Princeton University Press, 1997). 10  See Kautilya’s Arthashastra, Book II, Ch. II (R. Shamasastry trans., Spastic Cat Press, Kindle 2009). The four sciences are comprised of: Anvikshaki (the philosophy of sankhya, yoga, and lokayata), Vedas (Rig, Sama, Yajur, Atharva), Varta (trade, business, and profession), and Danda-Niti (the science of government). However, Manu the ancient legal philosopher and jurist holds that there are only three sciences: Vedas, Varta, and Danda-Niti. Except on the philosophy, both Manu and Kautilya have common vision on the issue of social science. 11  Id., Ch. XVI.

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products to international markets. For this reason, he also assigned the superintendent with a responsibility to develop friendly relations with foreign countries for the promotion of international trade.12 Kautilya, in the conclusion of his book, mentions that wealth is the source of livelihood of the people, which is founded on both the territory of a country and its inhabitants engaged in different occupations including trade. He specified the responsibility of the state to protect the people and promote their wellbeing.13 When the world leaders established the General Agreement on Tariffs and Trade (GATT) in 1947, they recognized international trade as one of the tools for raising living standards, creating employment, promoting growth and income, and expanding production and consumption.14 The World Trade Organization (WTO) Agreement contributes a further idea of sustainable development, and recognizes the need for positive efforts to secure a share of developing and leastdeveloping countries in the growth of international trade.15 One of the most important studies produced by GATT, the 1985 Leutwiler Report, claims that, “Open international trade is a key to sustained growth. Trade opens vast markets to each nation’s enterprises. It carries technology and innovation around the world. It spurs each nation to greater productivity.”16 In the final analysis, wealth, righteousness, and peace should be weighed in terms of people’s wellbeing, because “people are the real wealth of a nation.”17 Table 1 provides an indication of the extent to which the objectives of the GATT/WTO in terms of improving people’s wellbeing have been achieved. 12  Id. 13  See generally L. N. Rangarajan, Introduction, in Kautilya’s Arthashastra (L. N. Rangarajan trans., New Delhi, Penguin Books, 1992). 14  See the Preamble of the General Agreement on Tariffs and Trade (1947). It provides that, “Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, developing the full use of the resources of the world and expanding the production and exchange of goods.” 15  See the Preamble of the Marrakesh Agreement Establishing the World Trade Organization (1994). It provides that, “. . . while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development, . . . there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development.” 16  See Trade Policies for a Better Future: The Leutwiler Report, the GATT and the Uruguay Round 10 (Martinus Nijhoff Publishers, 1987). 17  See generally UNDP, Human Development Reports (2010 & 1990), available at http://hdr .undp.org, visited on June 14, 2015.

58 Table 1

Chapter 2 A comparison of human development

Countries

HDI rank

Life expectancy at birth

GNI per capita USD

Mean years of schooling

Afghanistan Australia Ethiopia Japan Nepal Norway Rwanda USA

172   2 174  12 157   1 166   4

48.7 81.9 59.3 83.4 68.8 81.1 55.8 78.5

1416 34431   971 32295  1160 47557  1133  4301

3.3 12.0 1.5 11.6 3.2 12.6 3.3 12.4

Data Source: UNDP, Human Development Report, 2011 available at http://hdr.undp .org/en/media/HDR_2011_EN_Complete.pdf.

The table shows that human development, as defined by the Human Development Reports—in the sense that it enlarges the process of people’s choices in terms of a healthy, educated, and longer life with decent standards of living—still seems to be a long-term goal for many poor countries in the world. The total value of merchandise exports of the least developed countries (LDCs) in 2011 was USD 204.8 billion, which is 10.74 times smaller than the merchandise exports of China alone, estimated at USD 2.2 trillion in 2013.18 Among the 50 LDCs, Angola, Bangladesh, Equatorial Guinea, Yemen, and Sudan are the top five LDCs exporters, accounting for 62 per cent of all exports from LDCs.19 Despite the continuous marginalization of the LDCs, Lawrence Lindsey argues that the explosion in international trade has been one of the main reasons that more than a billion people have joined the world’s middle class. 18  See WTO, World Trade Report, 2014, available at https://www.wto.org/english/res_e/ booksp_e/world_trade_report14_e.pdf, visited on June 14, 2015. The top five merchandise exporters in 2013 were China (U.S.$ 2.21 trillion, 11.7 per cent of world exports), the United States (U.S.$ 1.58 trillion, 8.4 per cent), Germany (U.S.$ 1.45 trillion, 7.7 per cent), Japan (U.S.$ 715 billion, 3.8 per cent) and the Netherlands (U.S.$ 672 billion, 3.6 per cent). There were no changes in the ranking among the top exporters but Japan suffered a sharp decline of 10.0 per cent in its exports. 19  See UNCTAD, The Least-Developed Countries Report, 2012, available at https://www.wto .org/english/res_e/booksp_e/world_trade_report14_e.pdf