The development of international constitutional law - Constitutional processes and international organizations

The ongoing internationalisation and globalisation lead to new constitutional processes in the global legal order. This program deals with these processed both from the perspective of an emerging international constitutional law and for the perspective of constitutional processes related to international organizations.

The development of international constitutional law

The development of the common constitutional traditions related to democracy, human rights and the rule of law is also visible in the global legal order. This order is increasingly characterized by fundamental values that are recognized by the international community. The central question is to which extent developments in this area lead to separate area of international constitutional law and how this area relates to the traditional foundations of international law.

An important dimension of international constitutional law concerns the relation between the international and the national legal orders. The development of common constitutional traditions is to a large extent defined by the interplay between these orders. On the one hand internationalisation strengthens the protection of these values at the domestic level - inter alia through a constitutionalisation of international human rights. On the other hand can these values be underminded by internationalisation - for instance as a result of their weak legitimacy and transparency.

The relationship between national and international law is also defined by an increasing acceptance of a hierarchy of norms in the global legal order. A special, limited, part of international law has thus been given an international constitutional character, comparable to the way in which the European court for Human Rights referred to the ECHR as ‘a constitutional instruments of European public order’. The further development of the concept of ius cogens contributes to an emerging ‘global constitution’.

Recent developments (for instance in relation to the war against terror or the coming of age of international economic law) pointed to the fact that for its member states the European Union may play a pivotal role in the development of non-national constitutional law. International law may (have) become an integral part of EU-law, which allows it to profit from the special nature of EU law. At the same time, traditional domestic guarantees may lose their effect against unwanted influences of international law.

Constitutional processes and international organizations

International organizations have increasingly occupied an autonomous position in the global legal order. This had led to a debate on the constitutionalisation of the legal order of these organizations. The debate is inspired by the supranational nature of the European Union, which made the possibility of an autonomous position of international organizations clearly visible. By now also other international organizations have developed further, which calls for a reflection on the transfer of competences, the possibilities of international organizations to develop their own legal order, the legal nature of of decisions taken by international organizations, and the extent to which organs and individuals of member states participate in the norm-setting by international organizations.

Research not only pointed at a strengthening of the autonomy of international organizations, but also at a tendency to call for an application of constitutional values (including the existence of a legal basis and the acceptance of procedural (as well as substantive) guarantees). Constitutional values play a larger role once international organizations are well-developed and national constitutional guarantees lose their relevance. Both the United Nations and the World Trade Organizations for good examples of organizations revealing that we need a concept of constitutional values that goes beyond the principle of the attribution of powers and includes legal certainly and legal protection as well.

Research in the area of the constitutionalisation of international organizations aims at the modification of domestic constitutional elements (related to for instance transparency, democracy, the rule of law, good governance and accountability) to allow for an application to international organizations, which increasing perform ‘public law’ functions.