Locating Unwritten Constitutional Norms in Global Constitutionalism
If there is a global constitutional order, it is “unwritten”. We cannot point to a written constitution for global law. Rather, theories of global constitutionalism and processes of global constitutionalisation are derived from an amalgamation of sources across international law and domestic constitutional orders. In locating evidence of global constitutionalisation, and in constructing theories of global constitutionalism, there are questions about the role of “globality”, the role of history, and the complex interplay of written and unwritten norms. As part of the Durham workshop for the Open Research Area (ORA) 7 project led by Dr Se-shauna Wheatle on ‘Unwritten Constitutional Norms and Principles’, we reflected on the roles that both history and globality play as sources for unwritten constitutional norms, and the interplay between written text and unwritten constitutional norms. This blog post reflects on these tensions within the debate on global constitutionalisation, and focuses specifically on democracy as an unwritten constitutional norm in global constitutionalism.
What is Global Constitutionalism?
When reflecting on the different sources of unwritten constitutional norms within global constitutionalism, we have to take into account the often-fragmented literature which makes up a body of scholarship called ‘global constitutionalism’. This scholarship sees a division between global international constitutionalisation, and global comparative constitutionalisation. These are two distinct approaches that are rarely placed into dialogue. International constitutionalisation is concerned with identifying the emergence of constitutional norms such as the rule of law, separation of powers and democratic accountability within international law and international organisations. Comparative global constitutionalisation can be described as the search for a commonality across domestic constitutional orders. This includes work by Cheryl Saunders on identifying an emerging common ‘gene pool’ of constitutional norms, and Jeremy Waldron’s and Se-shauna Wheatle’s work on the jus gentium. As comparative global constitutionalisation necessitates an analysis of the synergies and divergences of norms across the world’s constitutional systems, it can and should draw on written and unwritten norms (Kavanagh 2024). It is this complex interplay between international and comparative examples that underpins the task of locating the norms of global constitutionalism, and raises questions about the role of history and globality in identifying unwritten constitutional norms.
(Un)written Global Constitutionalism
Whilst Bardo Fassbender argues that the United Nations Charter 1945 operates as a “written” constitution for international law, this is not a common position espoused within the scholarship on global constitutionalisation. The majority of scholarship on global constitutionalisation relies on “uncodified” norms and principles. For example, in her early work on international constitutionalisation, Erika de Wet discusses erga omnes obligations (those obligations owed to the international community as a whole) and jus cogens norms (peremptory norms) as evidence of the constitutionalisation of international law. Yet, looking at these norms and obligations highlights the complex relationship between something being “unwritten” and “written”; indeed, writing surrounds these international law norms.
The recognition of jus cogens norms is outlined in Articles 53 and 64 of the Vienna Convention on the Law of Treaties 1969. Furthermore, the evidence of these “higher order” obligations and norms is found in the “written” subsidiary sources of international law – judicial decisions and writings of the most highly qualified publicists, as provided for in Article 38(1) of the International Court of Justice Statute – as well as in the work of the International Law Commission (ILC). Indeed, an accepted and indicative list of jus cogens norms (including the prohibition on torture, prohibition on genocide etc) is found in the ILC’s commentaries on the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) (see page 85). Though scholars might debate the natural law (and therefore potentially “unwritten”) foundations of jus cogens norms, these norms are heavily supported by the primary and subsidiary sources of international law, or in other words, written texts.
Whilst there is a written element needed to secure jus cogens as sources in international law, constructing their constitutional status highlights a more complicated role for the written and the unwritten. Jus cogens can be constructed as ‘constitutional’ for a number of reasons. Firstly, jus cogens norms can trump incompatible treaty law (and this is provided for in writing in Article 53 and 64 of the VCLT 1969), yet interpreting this “trump card” over treaty and custom as giving jus cogens norms an hierarchical nature is not written in a constitutional text. Secondly, Article 53 of the VCLT provides that a jus cogens norm is needed to revise a jus cogens norm, which can then be given a constitutional gloss as the quasi-entrenchment of the norms. In addition, as these norms are recognised in written subsidiary sources as obligations owed to the international community as a whole (i.e. erga omnes obligations), they invoke an international community. Scholars have also argued that they are constitutional because they reflect the moral compass of that “international community”. Of course, this then raises questions about the construction of this international community and who is included and whose views and interests are excluded. Feminist international law scholars, for example, would critique the type of constitutional order this constructs as the prohibition of the discrimination against women is not considered a jus cogens norm in international law (Houghton 2024). So, although jus cogens norms are evidenced through writing, and their hierarchical role in international law is provided for in treaty law, the constitutional status of jus cogens norms is not “written” in a constitution. There is then a distinction between being written as a norm in international law and the additional step of being written as a constitutional norm.
Democracy in the Unwritten Global Constitution
Within global constitutional scholarship, there is a heated debate on what form of constitutionalism is being invoked. Most often it is liberal constitutionalism, but this then gives rise to discussions on how the norms of liberal constitutionalism should be translated for the global legal order (see O’Donoghue 2013). One constitutional norm that receives a lot of attention in this field is democracy. Examining the development of this norm in global constitutionalism highlights the often complex relationship between the “written” and the “unwritten” as well as the challenging questions that emerge about the meaning and evidencing of ‘globality’.
Democracy is a contested term, but democracy as a constitutional norm in global constitutionalism is often constructed from two main arguments: that there is an emerging norm or right of democracy that is protected in international law, and participatory processes (e.g. Member States voting, consultations, and civil society engagement) at international organisations. These two arguments lead to a procedural notion of democracy that is predicated on elections, voting and participation. Writing and the written word have an ambiguous role in these arguments. The emerging norm or right of democratic entitlement, advocated for in the early 1990s by Thomas Franck, is partly “written”. For instance, Franck evidences his argument by referring to the International Covenant on Civil and Political Rights that protects the right to political participation (Article 25 ICCPR), and the right to self-determination which is protected in Common Article 1 of the International Covenants on Human Rights. Participatory practices within international organisations, which are often sources of evidence for constitutionalisation, are “written” down. For example, constitutive documents of international organisations outline the voting processes (see, UN Charter 1945, articles 18 and 27; ILO Constitution, article 4). The treaty establishing the International Labour Organisation provides for non-governmental participation of employers’ and workers’ associations (ILO Constitution, Article 7(1)). NGO participation at the UN Human Rights Council is provided for in UN General Assembly Resolution 60/251 (para 5(h) and para 11). There are also more informal written sources, such as the details of how civil society groups and organisations could participate in the “global” consultations on the World Bank’s Economic and Social Framework, which are provided for on the World Bank website (for a discussion on this consultation process, see Houghton 2019) From this diversity of written documentation, the “unwritten” constitutional norm of democracy is constructed by drawing upon these sources to evidence a global democratic norm.
The democracy norm is also supported with customary international law rules, for example Anne Peters argues that there are customary international law rules on the use of referendums to support succession. State practice and opinio juris are the requirements for custom, and whist the ILC report on customary international law provides an indicative list of the types of written material that can be used as evidence for state practice, evidence of these elements can be written or unwritten. There is then a complex relationship between the written and unwritten status of the norm, and the question becomes about what examples are used when collecting this evidence. Scholars such as B.S. Chimni and Sheri Labenski have critiqued the narrow focus of customary international law that can often overlook the practices of Global South states, and states on the peripheries, as well as sideline transnational organisations and action by civil society actors. The “global” evidence basis of custom can then be left wanting.
In evidencing the emerging norm of democracy, international law scholars (and in particular Thomas Franck, Gregory Fox and Brad Roth, and Thomas Carothers) draw on historical moments, and in their accounts certain historical examples of elections and election-monitoring prevail. The so called “End of History” (Francis Fukuyama), brought about by the fall of the Berlin Wall in 1989, is the common starting point for much of the literature on democracy in international law. The swathe of elections across Europe in the wake of the breakdown of the Soviet Union is constructed as evidence of a norm of democracy (for a discussion, see Carothers). And whilst Franck bucks this trend and discusses the international response to the coup in Haiti in the early 1990s (see Marks 2011), it is striking which examples do not get discussed as part of this “emerging norm”. For example, prior to the fall of the Berlin Wall, the Purple Rain Protest occurred in South Africa on 2 September 1989. The Purple Rain Protest was an anti-apartheid protest in which police used a watercannon against protestors, spraying them in purple dye so that they could be identified and arrested. Ignoring this example of grassroots popular revolt occurring alongside events in Eastern Europe is to risk constructions of democracy that do not include anti-racist, post-colonial and de-colonial accounts of democratic action. The failure to engage with actions such as the Purple Rain Protest also reflects the preoccupation of international law with state practice rather than the practices of people(s). In international law, the focus is on the states’ response to civil disobedience in the same way that the focus is on how states organise and manage elections rather than a focus on the peoples’ protests, their activism and participation. This is in contrast to the focus in constitutional scholarship where theories are built from particular historical moments of popular participation (for example, and as discussed below, the French Revolution). Furthermore, overlooking the Purple Rain Protest facilitates a liberal construction of democracy within international law, which is predicated on a minimal standard of free and fair elections.
The 1990s also witnessed mass movements on environmental activism and transnational activism against neo-liberal globalisation. The Battle in Seattle in 1999, a protest at the WTO conference, would be one such example of transnational solidarity and popular movements. These accounts of “global” movements, in the sense that they transcend state borders, as evidence of a transnational approach to democracy are rarely included within discussions on democracy within international law. Here we see that “globality” as a source, as evidenced by the transnational movements, is not a factor driving the identification and construction of democracy as a norm of global constitutionalism.
History or Globality as Sources of Global Constitutionalism
As discussed with respect to democracy, global constitutional scholarship often draws on historical examples to elucidate on the normative content of constitutional norms, such as the rule of law, separation of powers and democracy. When we consider the history that global constitutionalism turns to, it is not a “global” history. There is a tendency to draw on a selective number of Western examples and predominately it is the American Revolution and French Revolution that loom large in global constitutional scholarship. Vidya Kumar critiques the reliance on histories of Western, Global North states, which leads to a liberal construction of constitutionalisation in the historical sources of global constitutionalisation. Take for example, work that explores the meaning of constituent power in global constitutionalisation, which often uses Emmanuel Sieyès’ definition of pouvoir constituant – coined as part of his political pamphlets in the French Revolution – as a starting point. It is an account of constituent power as a constitutional norm or principle that is frozen in a particular historical time and political moment, proffering an Enlightenment theory of the individual and a narrow conceptualisation of democratic processes. Feminist scholars, such as Houghton and O’Donoghue have sought to revise this historical account; drawing on transnational examples of women’s activism and on the diverse experiences of feminist activists, their work seeks to problematise and pluralise accounts of constituent power. Anthony Lang and Antje Wiener also critique this Anglo-American history in the introduction to the second edition of the Handbook on Global Constitutionalism (2024). Such histories exclude the customs, knowledge and practices of the Global Majority.
Putting the Global in Global Constitutionalism
Within the comparative scholarship, there is a move away from this narrow construction of history. Indeed, in global comparative constitutionalism more work has been done on the turn to “global” values (see Saunders). There has been an attempt to diversify the countries and legal systems that are included in the discussions, with special journal issues on Global South constitutionalism, and analyses of Asian perspectives of global constitutionalism (see for example, Gender, sexuality and constitutionalism in Asia; ‘Global constitutionalism: Asia-Pacific perspectives’; Global Constitutionalism from European and East Asian Perspectives). There is then a tension between a turn to history and a reliance on constructions of “globality” as sources for unwritten constitutional norms in global constitutionalism.
Conclusion
Investigating the “unwritten” nature of global constitutionalism forces us to question the sources of the normative content of global constitutionalism and the evidence for the emergence of global constitutionalisation. It exposes the complex interplay between the amalgamation of written, textual evidence of law and the unwritten constitutional status. Such an interrogation also highlights the roles of history and globality as legitimating factors in identifying “global” norms for global constitutionalism.