International law as a constitutionalized legal system
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Date
30/06/2016Author
Detsomboonrut, Noppadon
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Abstract
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.