(Shivangi Pandey is a Fifth year student at University of Petroleum and Energy Studies, Dehradun)
Featured Illustration – “Triumph of the Revolution” by Diego Rivera
In the first part of this article Global Constitutionalism and its essential elements were discussed. Along with it a specific reference to the developments in Arab spring was also analyzed in this context. Deriving an inference from the Arab Spring, the new international order and how it evolved in the 20th century and how a new concept of State is evolving was also the main focus of the first part.
MERITS:
Global constitutionalism is an academic and political agenda that identifies and advocates for the application of uniform constitutionalist principles in the domestic legal sphere in order to improve the effectiveness and the fairness of the international legal order[i]. While it is clear that globalisation leads to the acknowledgement of this theory, it is also well proposed that globalisation created a variety of deficits and factors like the interference of developed nations in the matters of underdeveloped and creating “instances of kicking away of ladder” which created a negative reflection in the subject of constitutional principles.
To compensate for these loopholes global constitutionalism was adopted. The evolution was a gradual one. Due to this, basic attributes like humanity was a major feature of this phenomenon. Humanity is an attribute where the State realizes it’-s obligation to all natural persons and not merely it’-s own citizens. It aims to establish a society where human beings can live together in peace, harmony and above all have International security. This is the starting strategy behind this theory by empowering State sovereignty for all and establishing international solidarity. Establishing new definition of Democracy the need of normative benefits for all is another part of this goal. This is the essence of Global Constitutionalism.
Human Rights protection, Acknowledgement of Climate Protection laws and even Principles of Free trade with Most Favoured Nation policy and Special and Differential Treatment policies are evidence as to how the world is slightly addressing the woes of everyone and not just individual interests.
The realization of political and judicial actors of every nation state as participants of global role- play is the essential element of this discourse where these actors realize the constitutionalist strategies of balance, resolution of conflicts and benefit for all. This balance is aimed towards self as well as shared interests. The responsibility towards international law and its constituents are the founding factors of global governance with issues like equal participation and state sovereignty in the presence of additional insights of the international realm, both occurring side by side. The global constitutionalist discourse has challenged the traditional view that the international sphere is “a sort of constitutional wasteland or empty quarter”[ii]. This is where globalization has turned tables right here in this theory by creating an arena of International Legal order. This order has the symbolic powers yet though not entirely legitimate. This theory essentially tries to consolidate the diversified cultural policies of the Third world nations. It tries to set a uniform order where the interests of all are considered and their voices are heard. The culture of these nations who have distinctive traditions, beliefs and ideologies creates conflicts on multinational basis and this new uniform order which is a result of customary consent appreciates and then forms the decisions.
A related concern is that if Europeans “acquire disproportionate leverage” on the workings of a more highly ‘constitutionalized’ global system, the constitutional model of international law is unlikely to command American allegiance, especially if it is promoted as the paramount ethic of the global community[iii]. Now here is where globalization and the theory of global constitutionalism differs from the practice of industrialization. In the aspect of industrialization, Europe gained supremacy and then started advocating principles of free trade and imposing it on it’-s colonies as well. That is when nations rejected this idea and avoided the acceptance of such policies as it turned out to be hindering their growth and economy. But the rules of Global Constitutionalism are entirely different. Factors like consent, mutual interests, respect for cultural heritage is the binding factor of this principle and that is how the new legal order aims to function. A second, less noted, but highly significant impact has been a revival of the sociological method in constitutional theory[iv]. The sociological method of analysis of Constitutional theory is a revolution in legal introspection of the Third World structure. It is a leap of faith towards framing mutual bonds of relations with the world. For those prepared to take such a leap, a third assumption generally follows, namely, that the key question has switched from whether we should think in terms of constitutionalism beyond the state to what account is the most compelling response to the new challenges posed by globalization; here, again, much is deemed to turn on how we choose between the various theoretical frameworks on offer[v].
CONCLUSION:
As a result of introspection of the status of Global Constitutionalism, it has been suggested that an important distinction can be made between those who work within a framework of constitutionalism as a project, and those who view it from the perspective of critique[vi]. This is regarding the growth and acceptance of new terms of worldwide constitutional engagement. The engagement which is not limited to trade relations and the phenomenon of borrowing constitutional principles. It needs a new form of linkage within the spectrum of Global power relations. To evolve from the realm of constraints on the perspective of Constitutionalism under the pretext of self-interests and establishment of a social form of interplay where Constitutionalism is adopted globally along the lines of system of Democracy. This is where the identification of debates as projects and criticisms are essential. The perspective behind the development of diverse opinions under these two would be to interlink them, analyze them and then reconstruct the new face of Global Constitutionalism. This is the main attribute of this structure that it is not fixed like others. It evolves and is susceptible to change.
The role of constitutional scholars in the changes to be adopted has wide dimensions. It has both positive and negative impacts. The positive analysis is that they are the founding forces behind the enraged and evolved constitutional thought. But the downright impact of their criticism is a mandatory assessment. Insofar as constitutional scholars have identified any reasons for which countries might choose to adopt with great fanfare constitutions that ultimately ring hollow, they have most often suggested that constitutions perform expressive or aspirational function[vii]. These statements reflect the wholesome effect of constitutional scholars.
The modern constitutional tradition requires the widening of understanding of the core commitments of world politics which are human rights, rule of law and democracy. An intricate application of all these elements in the international scenario is to be considered here. A global script which has legitimacy and authority to intervene in conflicts and resolve them. National laws’ assessment, adaptation of the world changing protocols, interpretation is the key for progressive development of international relations and to evolve “beyond the State”. The theoretical questions regarding the assessment and historical questions regarding the structure are the key factors. This evolution of new constitutionalism, seen here as the political-juridical complement to disciplinary neo liberalism, provides the necessary element of direct power which can ‘ensure social control’[viii]. This is where international treaties mainly multilateral and not bilateral ones, agreements and organizations like WTO, TRIPS functions’- stimulate this control. As to assessing one of many impacts is the unification of Trademark Laws by the world. The adherence by all nations to this accepted form of regulation is an example of the existence of the mutual functioning along the interests of economical perspective. The acceptance of the barriers on trade like Amber Box, MFN treatment are an evidence of this perspective. The environmental principles like Polluter Pays and Precautionary Principle are testimonies that signify the success of global participation. This is the belief which clings on to the theory of avoiding constraints as to development of constitutional thinking.
[i] Anne Peters & Klaus Armingeon, Introduction-Global Constitutionalism from an Interdisciplinary Perspective, 16 IND.
[ii] Philip Allott, Intergovernmental Societies and the Idea of Constitutionalism, The Legitimacy of International Organizations 69, 92.
[iii] Douglas M. Johnston, World Constitutionalism in the Theory of International Law, Towards World Constitutionalism: Issues In the Legal Ordering of The World Community.
[iv] J. Pribáñ,, Multiple Sovereignty: On Europe’s Self-Constitutionalization and Legal Self-Reference (2010) 23.
[v] N. Walker, ‘Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders’, 6 International Journal of Constitutional Law, 373 (2008).
[vi] D. Schneiderman , ‘A New Global Constitutional Order?’ , Research Handbook on Comparative Constitutional Law, ( R. Dixon and T. Ginsburg edn. , 2010)
[vii] Beau Breslin, From Words To Worlds: Exploring Constitutional Functionality.
[viii] D. Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (2008)
Leave a Reply