Towards a Humanized International 'Constitution'?

Abstract

The paper argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalisation of national constitutional human rights law has led to the “constitutionalisation” of international law. To build that argument, the paper first critically assesses the constitutionalisation narrative. To that end it explains the reasons for its agnostic stance vis-à-vis it and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The paper then explains how human rights as a special branch of international law expand beyond the so-called humanisation of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalisation of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalisation of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralised level for the protection of common interests/values, sui generis normative hierarchy beyond jus cogens and the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

Keywords: constitutionalization; humanization; erga omnes; due diligence; normative hierarchy