International law as a constitutionalized legal system
Constitutional approaches have been frequently employed in recent international legal literature. This unavoidably triggers the question of the quality of international law as a constitutionalized legal system. This thesis attempts to answer such a question by determining the necessary and sufficient conditions for a constitutionalized international legal system and whether or not, at present, such minimum requirements have been fulfilled. The main difficulty in the articulation of these conditions is the semantic problem regarding the contours and content of constitutionalism caused by the transfer of this highly contested concept to the international context. In order to understand the destination context, a cosmopolitan paradigm will be consulted to provide explanations for the state-centred character of international law as part of the world’s multi-level governance. The thesis argues that the conditions for a constitutionalized international legal system must be articulated based on the viability of the proposed legal structure and its capacity to fulfil the underlying aims of international constitutionalism. The viability criterion demands compatibility with the pluralist structure of international society. The capacity criterion requires that the proposed legal structure can fulfil the underlying aim of international constitutionalism, which is, due to its complementary relationship with domestic constitutional sites, to create international self-governance with a limited mandate for peace and fundamental human rights. Thus, it is proposed that, in order to qualify as a constitutional legal system, international law must first be sufficiently equipped with secondary rules which will provide efficacy for international law to exist as a legal system. Secondly, there must also exist a hierarchy conferring a constitutional status on certain international primary rules protecting peace and fundamental human rights. Finally, international constitutionalization requires the institutionalization of international constituted power. The examination of whether or not each condition has been met in the current international legal structure is undertaken in order to determine the constitutional quality of international law, paying particular attention to the role of jus cogens rules and the United Nations in the process of international constitutionalization. It is argued that with the existence of the three elements, international law has already been constitutionalized to a large extent. However, there remain some deficiencies especially with regard to the legitimacy of the exercise of power on matters of peace and security by the Security Council, which require further constitutionalization.