Constitutional Fragments – On the Interaction of Constitutionalization and Fragmentation in International Law

Abstract

This contribution suggests that a constitutional perspective allows for a more adequate description of the international order as it stands, exactly because of the latter’s fragmented character. Beyond that heuristic insight, this paper makes four points: First, the constitutionalization of international law is a broad and deep phenomenon which historically started before fragmentation (section 2) has been discussed as a problem. Second, fragmentation and constitutionalization are mutually reinforcing and to some extent even mutually constitutive: On the one hand, constitutionalization phenomena within international law have exacerbated fragmentation, because they have from the outset on taken place at multiple sites, and have produced only constitutional fragments (section 3). On the other hand, fragmentation in turn has triggered new forms of constitutionalization in international law; the processes of fragmentation are themselves being ‘constitutionalized’. Put differently, constitutionalization (as a process) and global constitutionalism (as an intellectual framework) is profoundly shaping how law-appliers deal with fragmentation, notably because the current ‘second stage’-fragmentation debate which concentrates on principles, procedures, and institutions for coordinating, harmonising, and integrating various international regimes, is explicitly or implicitly guided by genuine constitutionalist considerations (section 4).

Thirdly, the discourses of fragmentation and constitutionalization are largely motivated by a common root concern, namely the concern about the legitimacy of international law. Both phenomena also share the merit of promoting contestation and politization within the international legal process; they are kindred-spirited. Importantly, constitutionalism is not a reconciliatory strategy responding to fragmentation but a critical discourse (section 5).

My conclusion is that global constitutionalism is a useful analytic lens for understanding how international law evolves and works, as long as it is understood as ‘thin’ (contending itself with procedures as opposed to substance), and inevitably multi-level (necessarily involving domestic constitutional law). Even if a global constitutionalism of this type stays (partly) outside the picture of international law proper, it will always be reproduced in the fragments of the international legal order (section 6).

Keywords: international law, constitutionalization, fragmentation, politization, legitimacy, contestation, regime