Global Constitutionalism and the Constitutionalization of International Relations: A Reflection of Asian Approaches to International Law

Abstract

With the emergence of global constitutionalism, domestic laws, policies, and administrative practices are demanded to be compatible with international laws. International laws are progressively assuming the position of supremacy over domestic laws like a constitution. State Parties are not free to eschew their obligations from giving effect to international laws. These minimum requirements of harmonization, supremacy, and authority of international law are constitutionalizing international relations, which has, indeed, already garnered the requisite legitimacy. In this regard, one of the obligations as well as contributions of Asia can be attributed to its participation in strengthening the practice of the constitutionalization of international relations. Against this background, this paper examines the nature of the constitutionalism of international law in defining and regulating international relations in reference to the idea of Asian approaches to international law. The query of what role has Asia played in history and what role is it playing in modern times in designing and practicing the concept of global constitutionalism might draw different paradigmatic responses, 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. This paper contends that any claim to modern international law as being 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 who have played innumerable roles in shaping modern international law in terms of its foundational concepts. The analysis and arguments of this paper are divided into seven sections. The first section discusses the controversy of whether the origin of international law is attributable only to a Eurocentric explanation. The second section analyzes the relevance, if any, of a spatially fragmented concept like an Asian approach to international law. The third section analyzes the basic features of constitutionalization as a system of global governance. The fourth section explores the concept of constitutionalization from diplomacy to the rules based international system. The fifth section explicates a few basic trends of harmonization between international law and domestic legal regulatory practices. The sixth section discusses the problems and possible trends of global constitutionalism. The final section concludes with a notion that despite diversity, in all its likelihood, Asia seems to be gradually advancing its role from a bystander to the partner of global constitutionalism, in terms of transmuting concepts into international rules, harmonizing them at the domestic level, and implementing them in practice.

Keywords: Global Constitutionalism, International Relations, International Law, Asian Approach to International Law